How can I become legal guardian of my family member with schizophrenia in an assisted living facility? – North Carolina

Short Answer

In North Carolina, a relative or other interested person may petition the Clerk of Superior Court to have an adult adjudicated incompetent and to be appointed as guardian. The court requires clear, cogent, and convincing evidence that, due to mental illness or similar cause, the adult cannot manage personal or financial affairs. The Clerk tailors the guardianship to the least restrictive option (person, estate, general, or limited) and issues Letters of Guardianship after appointment.

Understanding the Problem

North Carolina guardianship law addresses one decision point: can a family member become a court‑appointed guardian to make decisions for an adult with schizophrenia who resides in a private assisted living facility. The actor is a relative who seeks authority to handle medical and/or financial matters. The relief is appointment as guardian, triggered by the adult’s current inability to manage affairs, with timing driven by filing a petition and the court’s hearing schedule before the Clerk of Superior Court.

Apply the Law

North Carolina law allows the Clerk of Superior Court to adjudicate an adult “incompetent” and appoint a guardian when mental illness, developmental disability, or similar condition prevents the person from managing essential personal or financial affairs. The proceeding is a special proceeding initiated by petition in the county where the respondent lives or is present. The respondent has important rights (notice, participation, and counsel), and the court must use the least restrictive alternative, such as a limited or single‑purpose guardianship, when appropriate.

Key Requirements

• Legal standard: Evidence shows the adult cannot manage personal or financial affairs due to a qualifying condition (e.g., mental illness), proven by clear, cogent, and convincing evidence at hearing.
• Proper venue and petitioner: An interested person files in the county where the adult resides or is found; the Clerk of Superior Court hears the case.
• Notice and protections: Formal notice is served; the respondent has the right to be present, to counsel, and to be heard. The court may appoint an attorney and/or a guardian ad litem to safeguard rights.
• Least‑restrictive fit: The Clerk selects the narrowest guardianship (person, estate, general, or limited) needed to meet identified deficits.
• Qualification and authority: If appointed, a guardian of the estate posts bond (unless restricted or waived) and receives Letters of Guardianship to act with third parties.
• Reporting: After appointment, a guardian files an inventory (estate) and periodic reports/accounts as required; a guardian of the person files annual status reports.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1101 (Key definitions) – Defines “incompetent adult” and related terms.
• North Carolina Gen. Stat. § 35A-1105 (Who may file) – Allows any interested person to petition for adjudication of incompetence.
• North Carolina Gen. Stat. § 35A-1106 (Venue) – Sets the proper county for filing.
• North Carolina Gen. Stat. § 35A-1202 (Types of guardians) – Describes guardian of the person, guardian of the estate, general guardian, and limited guardianship.

Analysis

Apply the Rule to the Facts: A schizophrenia diagnosis, by itself, does not decide incompetence. The Clerk looks for current functional limits—such as inability to manage health care or finances—shown through medical records and testimony. Because the adult lives in a private assisted living facility and receives VA and Social Security benefits that are inaccessible, a limited guardianship of the estate (for finances) and/or of the person (for care decisions) may fit. The court will choose the least restrictive arrangement that addresses the proven deficits.

Process & Timing

1. Who files: An interested family member. Where: Clerk of Superior Court (Special Proceedings), in the North Carolina county where the adult resides or is present. What: North Carolina Judicial Branch guardianship forms (Petition for Adjudication of Incompetence and Application for Appointment of Guardian), plus supporting medical and financial records. When: Serve required notice before the hearing; hearings are commonly set within several weeks after service, subject to county calendars.
2. The Clerk issues notice and ensures service. The respondent is entitled to counsel; the court may appoint an attorney and/or a guardian ad litem. The court can order a multidisciplinary evaluation. A formal hearing is held before the Clerk; standard rules of evidence apply.
3. If incompetence is found, the Clerk appoints the most suitable guardian and specifies powers (limited or full). A guardian of the estate typically posts bond; the Clerk then issues Letters of Guardianship. Post‑appointment, file an inventory (estate) within about three months and annual accounts/status reports as required. Apply separately to SSA for representative payee and to VA for a fiduciary, if needed.

Exceptions & Pitfalls

• Less‑restrictive options: SSA representative payee and VA fiduciary programs can manage those specific benefits without a full financial guardianship.
• Scope matters: Request only the powers needed. Limited guardianship is favored when some decision‑making capacity remains.
• Bond and banking: For an estate guardianship, expect a bond. Restricted, court‑approved accounts can lower bond and protect funds.
• Service defects: Improper or incomplete service delays the hearing. Ensure the respondent is served at the assisted living facility or current location.
• Evidence gaps: Provide current medical opinions and specific examples of decision‑making problems; diagnoses alone are not enough.
• Post‑appointment compliance: Track inventory, annual accounting, and annual status report deadlines. Missing reports can lead to removal.
• Third‑party access: Guardianship does not automatically make one an SSA payee or VA fiduciary; file separate applications with those agencies.

Talk to a Guardianship Attorney

If you’re dealing with a potential adult guardianship for a loved one in assisted living and need authority over care or benefits, 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.