Short Answer

No. In North Carolina, you can ask the Clerk of Superior Court to decide incompetency first and file for the guardianship appointment afterward. Practically, most petitioners file both together using one combined petition so the clerk can hold the incompetency hearing and, if incompetency is found, proceed immediately to the guardianship appointment. You may request a limited or interim guardian if urgent decisions are needed before a final appointment.

Understanding the Problem

You want to know whether, in North Carolina, you must file the guardianship request at the same time you ask the Clerk of Superior Court to declare a parent incompetent. Your goal is to establish who can make decisions for your father if he cannot. You need to know if these filings must be simultaneous or may proceed in sequence.

Apply the Law

North Carolina guardianship matters run through the Clerk of Superior Court. The process typically has two phases: (1) adjudication of incompetency and, only if incompetency is found, (2) appointment of a guardian (of the person, of the estate, or a general guardian). The state provides a combined petition so you can request both in one filing, but the clerk still decides incompetency first. If incompetency is found, the clerk may hold the guardianship appointment immediately, often the same day. The respondent must receive personal service of the notice of hearing, and notice must be given to required relatives; hearings commonly move forward only after at least 10 days’ notice. In emergencies, you may ask for interim relief to protect the person or assets until the full hearing.

Key Requirements

• Start the case: File a petition to adjudicate incompetency in the respondent’s county of residence with the Clerk of Superior Court; you may include an application to be appointed guardian in the same filing.
• Service and notice: Ensure the respondent is personally served and that required relatives receive notice before the hearing; a guardian ad litem/court‑appointed attorney will be appointed to safeguard the respondent’s rights.
• Two-step decision: The clerk (or a jury, if requested) decides incompetency first; only then does the clerk decide whether to appoint a guardian and what type.
• Least restrictive option: The clerk tailors any guardianship to needs—often a limited guardianship—rather than removing rights more than necessary.
• Emergency/interim tools: If immediate action is needed to prevent harm or loss, the court can consider short‑term measures pending the full hearing.

What the Statutes Say

• North Carolina Gen. Stat., Chapter 35A (Guardianship) – Framework for incompetency proceedings and the appointment/powers of guardians.
• North Carolina Gen. Stat., Chapter 35A, Article 1 – Starting the case, service/notice, and incompetency hearings.
• North Carolina Gen. Stat., Chapter 35A, Article 12 – Appointment of guardians, types of guardians, and scope of authority.

Analysis

Apply the Rule to the Facts: As the daughter, you can file only for incompetency now and file the guardianship request later, but combining them is more efficient. If you file both together, the clerk can hear incompetency first and, if your father is found incompetent, proceed immediately to appoint an appropriate guardian (limited if possible). If urgent medical or financial decisions are needed before the hearing, ask for interim relief so there is no gap in authority.

Process & Timing

1. Who files: Any interested person (here, the daughter). Where: Clerk of Superior Court in the father’s county of residence in North Carolina. What: “Petition for Adjudication of Incompetence and Application for Appointment of Guardian or Limited Guardian” (available as an AOC form on the NC Courts website). When: The clerk sets a hearing; the respondent must be personally served and relatives notified—typically at least 10 days before the hearing.
2. Hearing(s): The clerk holds the incompetency hearing first. If incompetency is found, the clerk may take evidence right away on who should serve and whether the guardianship should be limited or general; many counties schedule these back‑to‑back.
3. Final step: The clerk enters an order adjudicating incompetency (or not) and, if appropriate, an order appointing a guardian. The clerk issues Letters of Guardianship to the appointee. If a guardian of the estate is appointed, expect bonding and reporting requirements before letters issue.

Exceptions & Pitfalls

• Missing service or notice delays the hearing; verify personal service on the respondent and timely notice to required relatives.
• Overbroad requests can lead to a limited guardianship instead; tailor the ask to the least restrictive option that meets the respondent’s needs.
• If you file incompetency without also filing for appointment, there may be a gap with no decision-maker; consider adding an application for guardianship or asking for interim relief.
• For a guardian of the estate, bond and initial filings (like an inventory) often apply; be ready so letters are not delayed.

Talk to a Guardianship Attorney

If you’re dealing with an incompetency and potential guardianship proceeding, our firm has experienced attorneys who can help you understand your options and timelines. Call us today to get started.

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.