How can I get my rights back if I’m under a guardianship? – North Carolina

Short Answer

In North Carolina, a person under an adult guardianship can ask the Clerk of Superior Court to restore rights by filing a verified motion for restoration to competency in the same guardianship case. The clerk must schedule a hearing, and the court can restore rights if the evidence shows the person is now competent. The process has formal service rules and short hearing timelines, so preparation and documentation matter.

Understanding the Problem

Under North Carolina guardianship law, the key question is whether a person who has been found incompetent can later be found competent again so that decision-making rights return. The decision is made in the existing guardianship file, usually in front of the Clerk of Superior Court who has jurisdiction over the case. The request is typically triggered by a change in capacity, functioning, or supports that makes the guardianship no longer necessary as it currently exists.

Apply the Law

North Carolina allows the ward (the person under guardianship), the guardian, or another interested person to request restoration to competency by filing a verified motion in the original incompetency/guardianship proceeding. The motion must include facts that tend to show competency. After proper service, the clerk holds a hearing, and the ward has important procedural rights, including the right to counsel (and, if indigent, appointment under applicable rules) and the right to request a jury. If the clerk (or jury) finds competency by a preponderance of the evidence, the clerk enters an order restoring competency, and the ward regains the ability to manage affairs and exercise rights as if the incompetency adjudication had not occurred.

Key Requirements

Verified restoration request in the same case: A sworn (verified) motion must be filed in the existing guardianship/incompetency file with the Clerk of Superior Court who is handling the case, and it must state facts showing competency.
Proper notice and service: The motion and notice of hearing must be served on the required parties using the civil summons/service rules, which can be a common stumbling block if done informally.
Proof at a hearing: At the hearing, the decision-maker must be persuaded that competency has been restored under the applicable standard of proof; the ward can be represented by counsel and can request a jury trial.

What the Statutes Say

N.C. Gen. Stat. § 35A-1130 (Restoration to competency) – Allows the ward/guardian/interested person to file a verified motion in the cause; requires a hearing (generally 10–30 days from service); provides rights to counsel/guardian ad litem, possible evaluation, and a jury on request; sets the preponderance standard and the effect of restoration.

Analysis

Apply the Rule to the Facts: Here, the stated goal is to get some rights back while under a North Carolina guardianship. The legal path is a restoration-to-competency motion filed in the existing case, supported by specific facts showing improved capacity and functioning. If the evidence at the hearing shows competency by a preponderance of the evidence, the clerk can enter an order restoring competency, which returns decision-making rights. If the evidence is not strong enough, the clerk can deny the request, and the order may be appealed for a new hearing in Superior Court.

Process & Timing

Who files: The ward, the guardian, or another interested person. Where: The Clerk of Superior Court in the county where the guardianship/incompetency case is already pending. What: A verified “motion in the cause” asking for restoration to competency and stating facts showing competency. When: Any time there are facts supporting restoration; after service, the hearing is generally set not less than 10 days and not more than 30 days from service, unless the clerk finds good cause to set a different schedule.
Service and preparation: The petitioner must serve the motion and notice of hearing on the required parties using Rule 4 service methods. The clerk may order a multidisciplinary evaluation, and the ward can request a jury trial (a six-person jury) if desired.
Hearing and order: The clerk (or jury) hears evidence and decides whether competency has been restored. If restoration is granted, the clerk enters an order restoring competency and the guardianship then moves toward final accounting and discharge of the guardian as required by the guardianship accounting/discharge process.

Exceptions & Pitfalls

Filing without enough facts: A motion that only states conclusions (for example, “the ward is fine now”) without concrete facts and supporting documentation often fails to persuade the court.
Service mistakes: Informal notice (texts, emails, hand-delivery without proper proof) can delay the hearing or create challenges because the statute requires service under the civil rules.
Not using available procedural protections: In some cases, requesting counsel, asking for an evaluation when appropriate, or timely requesting a jury can materially affect how the case is presented and decided.

Conclusion

In North Carolina, rights are typically restored from an adult guardianship by filing a verified motion for restoration to competency in the existing case with the Clerk of Superior Court and proving competency at a hearing by a preponderance of the evidence. The clerk generally sets the hearing 10 to 30 days after service of the motion and notice. The next step is to file the verified motion in the guardianship file and properly serve the required parties so the clerk can schedule the hearing.

Talk to a Guardianship Attorney

If someone is under a guardianship and wants to regain rights in North Carolina, our firm has experienced attorneys who can help explain the restoration process, prepare the evidence, and track the hearing 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.