Dec292025
Guardianship Q&A Series

Can Adult Protective Services remove my spouse from our home and keep them from returning unless other family members move out? – North Carolina

Short Answer

In North Carolina, Adult Protective Services (APS) generally cannot remove a spouse from the home or bar them from returning based only on an APS investigation or a worker’s request. APS typically must either (1) work with the disabled adult’s consent, or (2) obtain a court order that authorizes specific protective or emergency services. If someone is being kept out of the home, the legal authority usually comes from a court order (not APS alone), and the order must match what the court found necessary.

Understanding the Problem

In North Carolina guardianship and adult protection cases, the key question is whether Adult Protective Services can force a spouse to leave the marital home and then condition the spouse’s return on other family members moving out. This issue usually comes up after APS receives an allegation of abuse, neglect, or financial exploitation and begins an investigation. The decision point is whether APS has legal authority to exclude a spouse from the home without a judge’s order, or whether a court must first authorize any restriction on who can be in the home.

Apply the Law

North Carolina’s APS laws focus on providing “protective services” to a disabled adult. The general rule is consent-based: if the disabled adult has capacity and does not consent (or withdraws consent), APS cannot provide protective services. If the disabled adult lacks capacity to consent, APS can ask the district court for an order authorizing protective services, and the court can authorize only what is needed based on the evidence. In true emergencies, APS can petition for emergency services, including an ex parte order in limited situations, but the court still controls what services are authorized and for how long.

Key Requirements

  • Consent or court authority: APS generally needs the disabled adult’s consent to provide protective services, unless a court authorizes services because the adult lacks capacity to consent.
  • Specific findings and limits: If APS seeks a court order, the petition must allege specific facts, and the judge must make required findings before ordering services. The court should order only what is necessary to address the conditions at issue.
  • Notice and a prompt hearing in non-emergencies: When APS petitions for non-emergency protective services due to lack of capacity, the case is set quickly, the disabled adult receives notice, and the disabled adult has rights related to being present and represented.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, APS received an allegation of financial abuse involving a spouse, and the assigned worker is perceived as biased and has not provided clear identifying information or paperwork about the investigation. Under North Carolina law, an APS investigation alone does not automatically give APS the power to remove a spouse from the home or permanently bar a spouse from returning. If APS is attempting to impose conditions like “the spouse cannot return unless other family members move out,” the key question becomes whether there is a court order that specifically authorizes that restriction as part of protective or emergency services.

Process & Timing

  1. Who files: The county department of social services director (through APS). Where: North Carolina District Court. What: A petition for an order authorizing protective services (or emergency services). When: For a non-emergency protective services petition, the court must set a hearing within 14 days after filing, and the disabled adult must receive at least five days’ notice of the hearing.
  2. Hearing and proof: The judge considers whether the disabled adult needs protective services and whether the adult lacks capacity to consent. The disabled adult has the right to be present and represented by counsel, and the court can appoint a guardian ad litem if the adult cannot waive counsel.
  3. Order scope and follow-up: If the judge authorizes protective services, the order should be limited to what is necessary. If emergency services are ordered, they are limited to removing the emergency conditions, and longer-term services require additional court steps. The court can also schedule a review process that may lead to consideration of a guardianship filing under Chapter 35A.

Exceptions & Pitfalls

  • A separate court order may be driving the “no return” demand: Sometimes the restriction comes from a different case type (for example, a civil no-contact order, a criminal condition, or another protective order). If APS is referencing “court requirements,” it is important to identify the exact order and its terms.
  • Emergency orders can move fast: In a claimed emergency, APS can seek an ex parte emergency order in narrow circumstances. That can create sudden restrictions, but the order should include notice and a prompt opportunity to be heard.
  • Confusing APS “safety plans” with enforceable orders: APS may propose a safety plan or conditions for services. A safety plan is not the same as a judge’s order. Treating a voluntary plan as mandatory can lead to unnecessary exclusion from the home or unnecessary concessions.
  • Capacity and consent drive APS authority: If the disabled adult has capacity and does not consent (or withdraws consent), APS generally cannot force services. If APS claims lack of capacity, the court process and evidence requirements become central.
  • Paperwork and identification gaps: When the assigned worker does not provide clear identifying information or written documentation, it becomes harder to verify what is being requested and whether it is voluntary or court-ordered. Confirming the worker’s identity and requesting the legal basis for any demand can prevent misunderstandings.

Conclusion

In North Carolina, APS usually cannot remove a spouse from the home or keep the spouse from returning just because APS is investigating an allegation. APS authority generally depends on the disabled adult’s consent or a district court order authorizing specific protective or emergency services, and the court should limit any order to what is necessary. The most important next step is to obtain and review any petition or court order APS is relying on and respond promptly if a hearing has been scheduled within 14 days of filing.

Talk to a Guardianship Attorney

If APS is investigating alleged financial exploitation and someone is trying to force a spouse out of the home or impose conditions for returning, our firm has experienced attorneys who can help explain what APS can and cannot do, identify whether a court order exists, and track fast-moving deadlines. 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: Guardianship 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.