How can I modify an existing guardianship so I can become the guardian? – North Carolina

Short Answer

In North Carolina, an existing adult guardianship can usually be changed by filing a “motion in the cause” in the same county where the guardianship is already docketed. The motion asks the Clerk of Superior Court (who oversees most adult guardianships) to modify the current guardianship order, including removing or replacing the current guardian and appointing a new guardian. The moving party must give proper notice to required parties and be prepared to show why the change better protects the ward’s best interests and safety.

Understanding the Problem

In North Carolina, a parent may ask: can an existing court-ordered guardianship for an adult child be changed so the parent becomes the guardian instead of a third party or service provider? The decision point is whether the current guardianship order should be modified to replace the current guardian with a different person. This issue usually comes up when the current guardian’s decisions, the adult child’s placement, or the quality of care appears inconsistent with the adult child’s needs and well-being, and a change in guardian is requested through the same court file where the guardianship was created.

Apply the Law

Most adult guardianships in North Carolina are handled as “incompetency/guardianship” matters before the Clerk of Superior Court in the county where the guardianship is docketed. North Carolina law allows an “interested person” to file a motion in the cause to request modification of the order appointing a guardian or to ask the clerk to address other guardianship issues. The clerk sets a hearing, requires notice to the other parties, and can enter temporary emergency orders if there is reasonable cause to believe an emergency threatens the ward’s physical well-being or creates a risk of substantial injury to the ward’s estate.

Key Requirements

Standing (an “interested person”): The person asking for the change must qualify to bring the request, which commonly includes close family members such as a parent.
Proper filing and notice: The request must be filed in the existing guardianship case and served on the required parties with a notice of hearing, following the clerk’s directions and the applicable civil service rules.
Reason for modification: The motion should clearly explain what change is requested (for example, replacing the current guardian and appointing the parent) and why the change better protects the ward’s needs, safety, and overall welfare.

What the Statutes Say

N.C. Gen. Stat. § 35A-1207 (Motions in the cause) – Allows an interested person to file a motion in the cause with the clerk in the county where the guardianship is docketed to request modification of the guardianship order; requires a hearing date and service of the motion and notice of hearing; permits emergency ex parte orders in limited situations.

Analysis

Apply the Rule to the Facts: Here, the parent is seeking to replace an existing guardian for an adult child who already has a court-ordered guardianship. Because North Carolina permits an interested person to request modification of the guardianship order by motion in the cause, the parent can typically ask the Clerk of Superior Court in the existing guardianship file to remove or replace the current guardian and appoint the parent instead. The motion should focus on specific concerns showing the current arrangement is not protecting the adult child’s welfare and why the parent can meet the responsibilities of guardianship.

Process & Timing

Who files: An interested person (often a parent) or the clerk on the clerk’s own motion. Where: The Clerk of Superior Court in the county where the adult guardianship is docketed in North Carolina. What: A written “motion in the cause” requesting modification of the order appointing the guardian (including replacement/appointment). When: After filing, the movant must obtain a hearing date from the clerk and serve the motion and notice of hearing on required parties within the timeframe and method the clerk directs.
Notice and preparation: The movant serves the motion and hearing notice on the other parties and any additional persons the clerk directs. Preparation typically includes gathering records and witnesses that address the guardian’s performance, the adult child’s needs, and the proposed plan if the parent becomes guardian.
Hearing and order: The clerk holds a hearing, considers evidence, and then enters an order granting or denying the requested modification. If the clerk finds an emergency that threatens the ward’s physical well-being or risks substantial injury to the ward’s estate, the clerk may enter a temporary ex parte order to address the emergency until the hearing.

Exceptions & Pitfalls

Using the wrong court process: Adult guardianships are commonly handled by the Clerk of Superior Court under Chapter 35A, while juvenile guardianships and child welfare cases follow different rules. Filing in the wrong forum can cause delay.
Weak or vague allegations: Claims like “not acting in the best interests” work better when tied to specific decisions, patterns, or failures to meet the ward’s needs, along with a clear alternative plan if the parent becomes guardian.
Service and notice problems: If the motion and notice of hearing are not served correctly on all required parties (or on additional persons the clerk directs), the hearing may be continued or the request may be denied without reaching the merits.
Emergency relief limits: Emergency ex parte orders are available only when there is reasonable cause to believe an emergency threatens physical well-being or creates a risk of substantial injury to the ward’s estate; they are not a substitute for the full hearing.

Conclusion

In North Carolina, a parent can usually seek to become the guardian in an existing adult guardianship by filing a motion in the cause in the county where the guardianship is docketed and asking the Clerk of Superior Court to modify the order appointing the current guardian. The motion must be served with a notice of hearing on the required parties, and the request should explain why replacing the current guardian better protects the ward’s welfare. Next step: file a motion in the cause with the clerk and obtain a hearing date before serving notice.

Talk to a Guardianship Attorney

If a third-party guardian is making decisions that appear inconsistent with an adult child’s needs or safety, our firm has experienced attorneys who can help explain the North Carolina process to modify a guardianship, prepare the motion, and manage notice and hearing requirements. 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.