Can I challenge a guardian appointment if the court never adjudicated my child’s competency? – North Carolina

Short Answer

Yes. In North Carolina, a guardian for an adult may be appointed only after the Clerk of Superior Court first adjudicates the person incompetent based on clear, cogent, and convincing evidence. If no incompetency adjudication ever occurred, you can ask the clerk to set aside the guardianship as void and terminate it; a separate “restoration” motion is only needed if there was a valid adjudication.

Understanding the Problem

Under North Carolina guardianship law, can a parent challenge an adult child’s existing guardianship when the court never adjudicated the child incompetent? Here, public records show no petition or adjudication of incompetency before a facility was appointed as guardian. The parent wants either to be appointed as guardian or to have all rights returned to the adult child.

Apply the Law

North Carolina uses a two-step process: (1) adjudication of incompetency and then (2) appointment of a guardian, both handled by the Clerk of Superior Court. The law requires a verified petition, personal service on the respondent, the appointment of a guardian ad litem in many cases, and a hearing where the petitioner must prove incompetence by clear, cogent, and convincing evidence before any guardian can be appointed. The appointment occurs only after that adjudication, in the county where the adjudication was entered. If the statutory sequence is skipped, any resulting appointment can be challenged as void. Motions to set aside a void order are generally not time-barred, but you should act promptly.

Key Requirements

• Verified petition: A petition to adjudicate incompetence must be filed before any appointment can occur.
• Personal service and notice: The respondent must be personally served (typically by the sheriff), and next of kin receive notice.
• Hearing and proof: The clerk must hold a hearing and find incompetence by clear, cogent, and convincing evidence before entering an adjudication order.
• Appointment follows adjudication: Only after adjudication does the clerk determine the type and scope of guardianship and who should serve.
• Proper forum/venue: Appointment jurisdiction lies with the Clerk of Superior Court, in the county of adjudication.
• Challenging a void order: If there was no adjudication, you can seek to set aside the appointment as void and terminate the guardianship.

What the Statutes Say

• N.C. Gen. Stat. § 35A-1102 (Exclusive procedure) – Guardianship begins with an incompetency adjudication under Chapter 35A.
• N.C. Gen. Stat. § 35A-1112 (Hearing; adjudication; burden) – Requires clear, cogent, and convincing evidence and directs entry of an adjudication order.
• N.C. Gen. Stat. § 35A-1203 (Jurisdiction to appoint guardians) – Clerk’s original jurisdiction to appoint guardians after adjudication.
• N.C. Gen. Stat. § 1A-1, Rule 60 (Relief from judgment) – Allows relief from void orders, which can include appointments entered without required adjudication.

Analysis

Apply the Rule to the Facts: The record shows no incompetency petition or adjudication before a facility was appointed guardian, which skips the required first step. Without a valid adjudication supported by clear, cogent, and convincing evidence, the clerk lacked authority to appoint a guardian. You may move to set aside the appointment as void and terminate the guardianship; a separate restoration motion is only needed if a prior adjudication exists.

Process & Timing

1. Who files: The parent, the adult child, or any interested person. Where: Clerk of Superior Court in the county where the guardianship estate file is pending. What: A motion in the cause to set aside the appointment as void and to terminate the guardianship, with alternative relief (if needed) to restore rights or address proper appointment. When: File promptly after discovering the lack of adjudication; void-order challenges are generally not time-barred.
2. The clerk issues notice and sets a hearing. Serve the current guardian and other interested parties. The clerk may appoint a guardian ad litem for the adult child and may request evaluations if capacity is contested.
3. After the hearing, the clerk enters a written order. Outcomes can include vacating the appointment as void and terminating the guardianship, restoring the adult’s rights, or—if a valid adjudication exists—modifying or replacing the guardian.

Exceptions & Pitfalls

• Emergency interim orders: Interim guardians may be appointed quickly before a full hearing; if a valid adjudication later occurred, you must proceed through restoration or removal, not a void-order challenge.
• Hidden files or transfers: Confirm with the clerk whether an adjudication exists in another county or a sealed special proceeding file; do not rely only on online dockets.
• Wrong remedy: If a valid adjudication exists, seek restoration of rights or removal/substitution of the guardian, not a Rule 60 void-order motion.
• Notice and service: Ensure proper service of your motion on the current guardian and interested parties to avoid delays.

Talk to a Guardianship Attorney

If you’re dealing with a guardianship that was entered without a prior incompetency adjudication, 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.