How can I set up a guardianship for my child with autism and mental health diagnoses? – North Carolina

Short Answer

In North Carolina, you start an adult guardianship by filing a petition for adjudication of incompetence and for appointment of a guardian with the Clerk of Superior Court in the county where your child lives. The clerk must tailor any guardianship to be the least restrictive option, which often means a limited guardianship that preserves rights (including voting) the adult can still exercise. Many families combine limited guardianship with tools like health care releases, powers of attorney, or a representative payee to fit the person’s needs.

Understanding the Problem

You are a parent in North Carolina asking whether you can set up court-ordered help when your child turns 18. You want authority to assist with health care and finances while preserving your child’s independence, particularly voting. The key decision is whether to seek a limited guardianship (or another, less restrictive alternative) so your adult child keeps as many rights as possible while you gain enough legal authority to support medical, financial, and day-to-day decisions.

Apply the Law

North Carolina law treats guardianship for an 18+ individual as a special proceeding before the Clerk of Superior Court. The court first decides whether the respondent (your adult child) lacks capacity to manage important decisions because of a condition such as autism or a mental health disorder. If so, the clerk must impose the least restrictive option, which can include a limited guardian of the person (care decisions), a guardian of the estate (money/property), or a general guardian (both). The order should list specific rights your child keeps and the powers the guardian needs. Hearings occur in the clerk’s office, with notice, counsel, and other protections for the respondent.

Key Requirements

• Capacity finding: The clerk must find the adult cannot manage personal, health, or financial affairs due to a qualifying condition.
• Least restrictive option: The order must be tailored; limited guardianship is preferred when supports can address needs without removing rights.
• Proper filing and notice: File in the county of residence; the court issues a special proceeding summons and ensures the respondent receives notice and counsel.
• Defined roles: Choose among guardian of the person, guardian of the estate, or general guardian; specify powers clearly.
• Ongoing oversight: Guardians report to the clerk (care updates for person; inventories and annual accountings for estate).

What the Statutes Say

• North Carolina Gen. Stat. Chapter 35A (Guardianship of adults) – Framework for incompetency proceedings, guardian types, and duties.
• North Carolina Gen. Stat. § 7A-111 (Clerk administration of small funds) – Allows the clerk to manage up to a small-dollar threshold for an incapacitated adult without a full estate guardianship.
• North Carolina Gen. Stat. § 163-55 (Voter qualifications and disqualifications) – Addresses how an incompetency adjudication may affect voting unless rights are preserved or restored.

Analysis

Apply the Rule to the Facts: Your child will be an adult at 18, so you lose automatic access to medical and financial information. Because autism and mental health conditions affect finances, processing information, and self-advocacy, the clerk can consider a limited guardianship that lets you assist with health care decisions and certain money matters while preserving rights your child can still exercise, such as voting, if supported. Combining limited guardianship with HIPAA releases, a health care power of attorney (if your child can understand and sign), or a representative payee can minimize rights removed.

Process & Timing

1. Who files: A parent or any interested person. Where: Clerk of Superior Court in the North Carolina county where your child resides. What: Petition for Adjudication of Incompetence and Application for Appointment of Guardian (AOC guardianship petition form available on nccourts.gov). When: File several weeks before the 18th birthday if you want authority in place quickly; hearing dates vary by county.
2. The clerk issues a special proceeding summons, ensures your child is served, appoints counsel if needed, and may appoint a guardian ad litem. The clerk can order a medical or psychological evaluation. A hearing is then set; timing depends on service, evaluations, and local calendars.
3. At the hearing, the clerk decides capacity and, if appropriate, appoints a limited, person, estate, or general guardian. The clerk issues an order and Letters of Guardianship. Guardians file required reports: care/status reports for guardian of the person; inventory and annual accounts for guardian of the estate.

Exceptions & Pitfalls

• Less restrictive supports: Consider HIPAA releases, health care power of attorney, financial power of attorney (if your child can understand and sign), supported decision-making arrangements, representative payee for benefits, ABLE accounts, or small-funds management by the clerk for limited amounts.
• Overbroad orders: Ask for a limited guardianship tailored to specific needs; do not remove rights your child can safely exercise.
• Voting rights: If preserving voting is appropriate, request that the order explicitly preserves the right to vote; rights may also be restored later by modifying the order.
• Service/notice errors: Improper service or missing notices can delay the case; use the court’s special proceeding summons and confirm delivery.
• Social Security is separate: A court guardianship does not automatically make you a representative payee; apply directly with the agency.

Talk to a Guardianship Attorney

If you’re dealing with guardianship for a young adult with autism and mental health needs and want to preserve rights while adding support, 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.