How can I ask the court for a continuance when I just found out about the hearing? – North Carolina

Short Answer

In North Carolina guardianship and incompetency cases, a continuance is usually requested by filing a written motion (or request) with the Clerk of Superior Court and promptly giving notice to the other parties. A common reason is that notice came late and there has not been enough time to prepare, gather medical records, or consult counsel. The clerk has discretion to continue an incompetency hearing for “good cause,” and the court’s own scheduling rules also require a minimum time between service and the hearing in most cases.

Understanding the Problem

In a North Carolina incompetency/guardianship case, the key question is how to ask the Clerk of Superior Court to move (continue) a hearing date when notice arrives close to the hearing and there is not enough time to prepare. The decision point is whether the hearing can be continued based on timing and “good cause,” such as needing time to obtain medical information, coordinate with a rehabilitation facility, or secure representation before the clerk decides whether a spouse is incompetent and whether a guardian should be appointed.

Apply the Law

North Carolina incompetency hearings are typically scheduled and heard by the Clerk of Superior Court. State law sets a timeline for when the hearing must be held after the respondent is served, and it also allows the clerk to extend (continue) the hearing for certain reasons. When someone “just found out” about the hearing, the continuance request usually focuses on (1) whether service/notice happened late or incorrectly, and (2) whether there is good cause to move the date so the parties can prepare and the respondent’s rights are protected.

Key Requirements

Act quickly and ask in writing: A continuance request is stronger when it is filed immediately after learning about the hearing and clearly states the reason more time is needed.
Show “good cause” tied to preparation and fairness: Good cause often includes needing time to obtain medical records or evaluations, consult with the respondent (or the respondent’s appointed counsel/guardian ad litem), identify witnesses, or address service/notice problems.
Give notice to the other parties: The request should be served on the parties of record (including the respondent’s counsel or guardian ad litem, if appointed) so the clerk can consider the request fairly.

What the Statutes Say

N.C. Gen. Stat. § 35A-1108 (Issuance of notice; hearing timeline; clerk may extend for good cause) – sets the general timing for an incompetency hearing after service and allows the clerk to extend the hearing for good cause in certain situations.
N.C. Gen. Stat. § 35A-1211 (Service of application, motions, and notices) – explains who must be served in a guardianship appointment proceeding and how service/notice generally works.

Analysis

Apply the Rule to the Facts: The scenario involves a spouse in a rehabilitation facility and a hearing that may happen very soon where the spouse could be declared incompetent. A continuance request should focus on the short notice and the practical need for time to prepare—such as obtaining current medical information from the facility, coordinating the spouse’s ability to participate, and reviewing the petition and rights notice before the clerk makes a decision. If the hearing date does not appear to comply with the statutory timing after service, that is also a key point to raise in the motion.

Process & Timing

Who files: Any party who needs more time (often the respondent, the respondent’s counsel/guardian ad litem, or an interested family member). Where: With the Clerk of Superior Court in the county where the incompetency/guardianship case is pending. What: A written Motion for Continuance (sometimes called a request to continue) stating the hearing date, why the hearing needs to be moved, and what new date range is requested. When: File as soon as the hearing is discovered—ideally the same day or next business day.
Serve notice: Provide a copy to the other parties of record, including the respondent and the respondent’s counsel or guardian ad litem if one has been appointed, and any other persons the clerk has directed be served in the case.
Get a ruling: Ask the clerk’s office whether the clerk will rule on the papers, set a short hearing on the continuance request, or require the request be presented in open court on the scheduled date. If the clerk grants the continuance, the clerk should issue a new notice of hearing with the continued date.

Exceptions & Pitfalls

Waiting until the last minute: A continuance request is harder to justify if it is filed right before the hearing without a clear reason for the delay.
Not tying the request to a concrete need: “More time” is usually not enough by itself. Strong motions explain what must be done (medical records, witness coordination, facility logistics, counsel consultation) and why it cannot reasonably be done before the current date.
Notice/service problems can cut both ways: If notice was improper or too late, that can support a continuance, but it should be raised clearly and backed by dates and documents (how notice was received, when service occurred, and what was served).
Assuming a continuance is automatic: The clerk has discretion. If the continuance is denied, the safest approach is to appear on the hearing date (or have counsel appear) and renew the request on the record rather than simply not showing up.

Conclusion

In North Carolina, a continuance in an incompetency/guardianship case is typically requested by promptly filing a written Motion for Continuance with the Clerk of Superior Court and serving it on the parties of record. The motion should explain the short notice and the specific “good cause” for more time, such as needing medical information from a rehabilitation facility or time to consult counsel before the incompetency hearing. The most important next step is to file the motion immediately with the clerk in the county where the case is pending.

Talk to a Guardianship Attorney

If a guardianship or incompetency hearing is scheduled soon and notice came late, our firm has experienced attorneys who can help explain options, prepare a continuance request, and track the court’s 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.