Sep122025
Family Law Q&A Series

How can my mom move into assisted living if her spouse won’t consent? – North Carolina

Short Answer

In North Carolina, if your mom still has decision-making capacity, she can choose to move into assisted living and sign the residency agreement without her spouse’s consent. If she lacks capacity, a health care agent or a court‑appointed guardian of the person can authorize placement. The Clerk of Superior Court can hold a prompt hearing and, if needed, appoint a limited or full guardian to make residence and care decisions and a guardian of the estate to manage funds.

Understanding the Problem

You’re asking whether, under North Carolina law, your mom can move into assisted living when her spouse refuses. The decision point is this: can your mom (actor) choose assisted living (action) now that she can’t manage daily life (trigger), even though her spouse with dementia won’t agree or contribute? One salient fact: they jointly own two homes.

Apply the Law

North Carolina law treats an adult’s capacity as the starting point. A competent adult may choose where to live and may contract for assisted living. When an adult cannot understand or manage personal affairs, the Clerk of Superior Court can adjudicate incompetence and appoint a guardian. A guardian of the person may decide residence and care; a guardian of the estate manages money and property; a general guardian does both. These matters are heard in the Clerk’s office, and the respondent has rights to counsel, notice, and a hearing. The Clerk may appoint a guardian ad litem and conducts a formal hearing where the Rules of Evidence apply. After service of notice, hearings are typically set on a short timeline.

Key Requirements

  • Capacity first: If your mom understands her choices, she can move and sign an assisted living agreement without her spouse’s consent.
  • Use any existing decision-maker: A valid health care power of attorney (health care agent) may authorize care and placement if your mom now lacks capacity.
  • Guardianship if needed: If there’s no workable agent or authority, file a petition with the Clerk of Superior Court to adjudicate incompetence and appoint a guardian (limited or full).
  • Notice and hearing: The respondent must be personally served; the Clerk may appoint a guardian ad litem; the respondent has rights to be present, have counsel (appointed if indigent), and request a jury.
  • Guardian powers: A guardian of the person can choose residence and consent to services; a guardian of the estate can manage assets to pay for care and seek court approval when property action is required.
  • Forum and timing: File in the county’s Clerk of Superior Court; hearings are scheduled promptly after service and may be expedited for safety concerns.

What the Statutes Say

Analysis

Apply the Rule to the Facts: If your mom still understands her situation and options, she may choose assisted living and sign the contract even though her spouse refuses. If she lacks capacity, check for a valid health care power of attorney; the named agent can authorize placement. If no agent exists or authority is unclear, a petition for guardianship lets the Clerk decide capacity and, if needed, appoint a guardian of the person to choose residence and a guardian of the estate to handle funds. Because two homes are jointly owned, a guardian may need court approval to use or liquidate assets to pay for care.

Process & Timing

  1. Who files: Any interested person (often a family member). Where: Clerk of Superior Court in the North Carolina county where your mom lives. What: File a Petition for Adjudication of Incompetence and Application for Appointment of Guardian (AOC-SP-200 series) and request limited or full guardianship as needed. When: File as soon as incapacity prevents safe self-care or decision-making.
  2. After filing, the Sheriff serves your mom with the petition and notice; the Clerk appoints a guardian ad litem and, if needed, counsel. The Clerk sets a hearing—typically on a short timeline after service. The hearing is formal; the Rules of Evidence apply; the Clerk acts as judicial officer and may take medical and lay testimony.
  3. If the Clerk finds incompetence by clear, cogent, and convincing evidence, the Clerk issues an order and Letters of Guardianship. A guardian of the person may authorize assisted-living placement; a guardian of the estate can manage money and seek approvals needed to pay for care. Letters of Guardianship are then provided to the facility and financial institutions.

Exceptions & Pitfalls

  • Don’t seek guardianship if your mom has capacity—her voluntary choice controls. Use a valid health care power of attorney first if one exists.
  • File the petition about the correct person. If mom is competent but the spouse with dementia is creating danger, consider guardianship for the spouse instead.
  • Service and rights matter. Personal service, appointment of a guardian ad litem, and your mom’s right to counsel and to attend are required; missing steps can delay orders.
  • Use the least restrictive option. Ask for limited guardianship tailored to residence and care decisions if full authority isn’t necessary.
  • Property traps. Jointly owned real estate can complicate paying for care; a guardian often needs court approval before using or selling interests.
  • Mediation may help resolve family disagreements; the Clerk can order it in matters before the Clerk.

Conclusion

In North Carolina, your mom may move to assisted living without her spouse’s consent if she has capacity. If she lacks capacity, a health care agent or a court‑appointed guardian of the person can authorize placement, and a guardian of the estate can manage funds. The next step is to file a guardianship petition with the Clerk of Superior Court in your mom’s county; after service, the Clerk will set a prompt hearing to decide capacity and appoint the right guardian.

Talk to a Family Law Attorney

If you’re dealing with a capacity or consent roadblock to assisted living in North Carolina, our firm has experienced attorneys who can help you understand your options and timelines. 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: Family Law Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.