How can I remove a sibling living in my relative’s home when my relative can’t attend court but is mentally competent? – North Carolina

Short Answer

Under North Carolina law, a mentally competent homeowner generally must be the one to act in court to remove someone from the home, usually through a summary ejectment (eviction) case if the person will not leave voluntarily. If the relative is competent but physically unable to attend, the clerk or court may allow testimony by affidavit, deposition, or remote appearance, or the relative may use a valid power of attorney so an agent can sign filings and appear. Guardianship is not available when the relative is mentally competent, so any court process focuses on landlord-tenant and property rules, not guardianship.

Understanding the Problem

The narrow question here is: in North Carolina, how can a family member have a sibling removed from a mentally competent relative’s home when that relative cannot physically go to court? This sits at the intersection of guardianship, powers of attorney, and landlord-tenant removal (summary ejectment). The core issue is whether a competent homeowner can delegate authority or use alternative procedures so that a sibling who refuses to leave can be removed through lawful court process without the homeowner personally appearing in court.

Apply the Law

North Carolina separates guardianship (for incompetent adults) from landlord-tenant and property removal rules. When an adult is mentally competent, the court does not appoint a guardian of the person or estate. Instead, removal of someone living in the home proceeds under landlord-tenant and property statutes, and the competent owner can act personally, by attorney, or through a valid power of attorney if properly drafted and accepted.

Key Requirements

Mental competence of the homeowner: If the relative is mentally competent, no adult guardianship under Chapter 35A is available solely because of physical inability to attend court.
Legal authority to seek removal: The person filing must be the owner/landlord or a properly authorized agent (such as an attorney-in-fact under a power of attorney or an attorney representing the owner).
Proper removal procedure: To remove a sibling who will not leave, the owner or authorized agent must use North Carolina’s summary ejectment process in small claims or district court, or another appropriate civil action, and may not use “self-help” (changing locks, shutting off utilities, etc.).

What the Statutes Say

N.C. Gen. Stat. § 35A-1204 (Guardianship venue) – Places guardianship matters before the clerk of superior court, but guardianship applies only after a finding of incompetence.
N.C. Gen. Stat. § 35A-1121 (Protective arrangements) – Allows limited protective orders for an incompetent person’s property without appointing a guardian; it still requires a basis for incompetence and does not apply to a fully competent adult.
N.C. Gen. Stat. § 42-25.6 (Manner of ejectment) – Requires that residential occupants be removed only through the summary ejectment procedures in Chapter 42, not by self-help.
N.C. Gen. Stat. § 42-60 (Removal actions and jurisdiction) – Provides that actions to remove tenants or other persons from leased residential premises are civil actions brought in the county where the property is located.

Analysis

Apply the Rule to the Facts: Because the question assumes the relative is mentally competent, the clerk of superior court will not open a guardianship solely to let someone else remove the sibling. Instead, the competent homeowner is treated as any other landlord or owner. For example, if a sibling has been allowed to live in the home and now refuses to leave, the owner (or an authorized agent under a written power of attorney) can give notice to vacate and then file a summary ejectment action in small claims court when the sibling does not leave.

Process & Timing

Who files: The homeowner/landlord, or an attorney-in-fact under a valid power of attorney, often through a lawyer. Where: Small claims court before a magistrate in the district court of the North Carolina county where the home is located. What: A complaint in summary ejectment and summons (forms supplied by the clerk’s office). When: After the owner revokes permission for the sibling to stay and, if applicable, gives any required written notice to vacate (often a short notice if there is no lease term).
The clerk issues a court date, typically within a few weeks, and the sheriff serves the sibling with the complaint and summons. On the hearing date, the owner, an authorized agent (for example, under a power of attorney), and/or the attorney appears, presents proof of ownership, the sibling’s occupancy, and that permission has been revoked or the tenancy ended.
If the magistrate enters judgment for possession, the court issues a judgment for summary ejectment. After the appeal period runs, the owner can request a writ of possession, and the sheriff carries out the physical removal according to the writ and Chapter 42 procedures.

Exceptions & Pitfalls

If the relative is actually not mentally competent, a proper incompetency and guardianship proceeding before the clerk of superior court may be necessary first; that changes who has legal authority to act.
Trying to remove the sibling by changing the locks, cutting off utilities, or discarding belongings without a writ of possession can expose the homeowner to civil liability under Chapter 42.
Failure to prove legal ownership or authority (for example, a defective or missing power of attorney) can cause dismissal; all authorizing documents should be current, properly signed, and available for the hearing.

Conclusion

In North Carolina, when a relative is mentally competent but cannot physically attend court, the law does not allow guardianship simply to remove a sibling from the home. Instead, the homeowner remains the decision-maker and must use the summary ejectment process in the county where the property sits, acting personally, through a valid power of attorney, and/or with legal counsel. The key next step is to have the owner revoke permission for the sibling to stay and then file a summary ejectment complaint in the proper court.

Talk to a Guardianship Attorney

If a family is dealing with a sibling who will not leave a mentally competent relative’s home, our firm has experienced attorneys who can help clarify options, prepare any needed power of attorney, and navigate the removal process. 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.