Jan52026
Estate Planning Q&A Series

If neither the elderly family member nor the adult child is mentally capable of managing their affairs, how do we start a guardianship and what does it cover? – North Carolina

Short Answer

In North Carolina, a guardianship for an adult starts by filing an incompetency/guardianship proceeding with the Clerk of Superior Court in the county where the person lives. The Clerk first decides whether the person is legally “incompetent,” and only then appoints a guardian. Depending on the needs, the Clerk can appoint a guardian of the person (care decisions), a guardian of the estate (money/property decisions), or a general guardian (both), and the order can be limited to only the powers truly needed.

Understanding the Problem

In North Carolina, can a family start a court guardianship when an elderly relative with dementia cannot manage health and safety decisions and the adult child in the home also cannot reliably manage money or make important decisions? If so, what does the guardianship cover, and what is the first step to ask the Clerk of Superior Court to appoint someone to make decisions and protect assets? The decision point is whether a court-appointed guardian is needed because there is no workable, less restrictive way to handle medical decisions, living arrangements, bills, and property management.

Apply the Law

North Carolina adult guardianship is a court-supervised process handled by the Clerk of Superior Court. It is a two-part proceeding: (1) the Clerk decides whether the adult meets the legal definition of “incompetent,” and (2) if so, the Clerk appoints the right type of guardian and spells out the guardian’s powers in an order. North Carolina law also emphasizes that, for adults, guardianship should be used only after less restrictive options have been considered and found insufficient, and the Clerk can tailor the guardianship to the person’s actual limitations (including a limited guardianship that preserves certain rights).

Key Requirements

  • Legal incapacity (incompetence): The evidence must show the adult lacks enough capacity to manage affairs or make/communicate important decisions, and that the limitation comes from a qualifying condition such as dementia/senility, mental illness, injury, or a similar cause.
  • Right type and scope of guardianship: The Clerk must decide whether the situation calls for a guardian of the person (care and well-being), a guardian of the estate (finances and property), or a general guardian (both), and whether the order should be limited to specific powers.
  • Suitable guardian and court supervision: The Clerk appoints the person or agency most suitable to serve, and financial guardians typically must meet court requirements such as bonding and ongoing accountability (with the Clerk supervising and requiring reporting/accounting).

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe an elderly relative with dementia and limited mobility who needs long-term care planning, which often aligns with the legal requirement that the person cannot manage affairs or make/communicate important decisions due to a condition like senility/dementia. The facts also describe an adult child in the home with mental health challenges and concerns about overspending, which raises the practical question of whether that adult child can serve as a reliable decision-maker or whether a neutral third party may be more suitable. Because there may be real estate, bank accounts, and uncertainty about a will after a spouse’s death, the situation commonly calls for financial authority (guardian of the estate) and possibly personal decision authority (guardian of the person), but the Clerk can limit powers to what is necessary.

Process & Timing

  1. Who files: A family member or other responsible person. Where: The Office of the Clerk of Superior Court in the North Carolina county where the allegedly incompetent adult resides. What: An incompetency/guardianship petition (the county clerk’s office typically provides local forms and filing instructions). When: As soon as there is a real risk of harm, unpaid care needs, or financial loss and no workable alternative authority exists.
  2. Incompetency determination: The Clerk schedules a hearing and receives evidence about capacity, needs, assets, and the least restrictive plan that can meet the adult’s needs. In contested cases, the Clerk often addresses the incompetency question first before deciding who should serve as guardian.
  3. Appointment and qualification: If the Clerk finds the adult incompetent, the Clerk appoints the appropriate guardian type (person, estate, or general) and enters an order describing powers and any retained rights. If a guardian of the estate or general guardian is appointed, the Clerk commonly requires a bond and ongoing reporting/accounting before the guardian can fully act.

Exceptions & Pitfalls

  • Less restrictive alternatives may avoid (or narrow) guardianship: If valid powers of attorney, health care documents, or a workable trust exist and can function safely, the Clerk may view full guardianship as unnecessary. Even when some court involvement is needed, a single protective arrangement under North Carolina law may solve a one-time problem without a continuing guardianship.
  • Choosing the wrong guardian: When there are concerns about overspending or financial exploitation, the Clerk may not view the person associated with the spending as suitable to manage the estate. In some cases, a neutral option (including a county public administrator where available) may better protect the ward and reduce family conflict.
  • Assuming guardianship automatically controls everything: A guardian’s authority comes from the Clerk’s order and statutes, and it can be limited. Also, certain health care documents and end-of-life declarations have special rules; a guardian may need a court order to suspend a health care agent’s authority and may not be able to revoke certain declarations.
  • Not planning for “two adults” who may both need protection: If the adult child is also unable to manage affairs, that typically requires a separate incompetency/guardianship case for that adult child. One guardianship does not automatically give authority over another competent (or allegedly incompetent) adult.
  • Gaps in financial control during transitions: If a guardian of the estate stops serving or is removed, the Clerk can take steps to protect the estate temporarily, but families should still move quickly to ensure a qualified successor is appointed and accounts are brought current.

Conclusion

In North Carolina, starting guardianship for an adult requires filing an incompetency/guardianship proceeding with the Clerk of Superior Court in the county of residence. The Clerk must first find the person legally incompetent, then appoint a guardian of the person, guardian of the estate, or a general guardian, with powers limited to what is necessary. A practical next step is to file the petition with the Clerk of Superior Court as soon as the family cannot safely manage care decisions or protect finances through less restrictive alternatives.

Talk to a Estate Planning Attorney

If a family is dealing with dementia, mental health limitations, and concerns about overspending, a guardianship case can move quickly and can affect health care, housing, and finances. Our firm has experienced attorneys who can help explain options, prepare the filings, and map out timelines for the Clerk of Superior Court. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Estate Planning Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.