Jan12026
Guardianship Q&A Series

How do I file a motion to modify a guardianship so I can replace the current guardian and bring my parent back home? – North Carolina

Short Answer

In North Carolina, a request to change a guardian or change how a guardianship is being handled is usually filed as a “motion in the cause” with the Clerk of Superior Court in the county where the guardianship is docketed. The clerk will set a hearing date, and the moving party must serve the motion and notice of hearing on the other parties as the clerk directs. If there is an urgent risk to the parent’s health or finances, the clerk can enter a temporary emergency order while the motion is pending.

Understanding the Problem

In North Carolina guardianship cases, the key question is: can an interested person ask the Clerk of Superior Court to change an existing guardianship order so a different guardian is appointed and the parent can live at home instead of a facility? This situation usually comes up after an incompetency finding, when a guardian has authority over the parent’s care decisions, and a family member believes the current plan is not appropriate or the current guardian is not the right person to serve.

Apply the Law

North Carolina typically handles changes to an existing guardianship through a “motion in the cause” filed with the Clerk of Superior Court (Estates/Guardianship) in the county where the guardianship file is open. The motion asks the clerk to modify the prior order appointing a guardian or to address another issue “pertaining to the guardianship.” After filing, the clerk sets the hearing, and the moving party must serve the motion and hearing notice on the other parties and any additional people the clerk directs. If the clerk finds 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, the clerk may enter a temporary ex parte order to address the emergency until the hearing.

Key Requirements

  • Proper filing in the existing case: The request is filed in the same guardianship file (a “motion in the cause”) with the Clerk of Superior Court in the county where the guardianship is docketed.
  • Hearing date and notice: The clerk sets a time and place for hearing, and the moving party must serve the motion and notice of hearing on the required parties in the manner the clerk directs.
  • Clear request and supporting facts: The motion should clearly state what change is requested (replacement of guardian and/or change in placement) and the facts showing why the change serves the ward’s needs and safety.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the parent has already been found incompetent and placed in a facility under a guardianship arrangement, and the caregiver-family member disputes the allegations that led to removal and believes the parent’s health has declined since placement. Under North Carolina law, the procedural vehicle to ask for a change in the guardianship (including replacing the current guardian and addressing placement decisions) is typically a motion in the cause filed with the clerk in the county where the guardianship is docketed. The motion should focus on the requested change and the facts supporting why a different guardian and a home placement plan better meet the parent’s needs and safety, and it should be prepared for a clerk-set hearing with proper service on all required parties.

Process & Timing

  1. Who files: Any “interested person” (often a close family member) or the clerk. Where: The Clerk of Superior Court (Estates/Guardianship) in the North Carolina county where the guardianship is docketed. What: A written “motion in the cause” requesting modification of the guardianship order (including replacement of the guardian and any related relief about care/placement). When: After the guardianship is in place; the moving party must obtain a hearing date from the clerk.
  2. Set the hearing and serve papers: The clerk provides the time/date/place for hearing. The moving party must serve the motion and notice of hearing on all other parties and any additional people the clerk directs, using the service method the clerk requires under the applicable civil procedure rules (unless the clerk orders otherwise).
  3. Hearing and order: At the hearing, the clerk considers evidence and arguments about whether to modify the guardianship order. If the clerk grants the request, the clerk enters a written order changing the guardianship (for example, appointing a different guardian and setting terms that affect care decisions).

Exceptions & Pitfalls

  • Mixing up two different requests: Replacing a guardian or changing how the guardianship is handled is different from restoring the parent’s competency. Restoration requires a verified motion with facts tending to show competency and follows its own hearing and service rules.
  • Not serving the right people the right way: Motions can be delayed or denied if the moving party fails to serve the motion and hearing notice on all required parties and any additional people the clerk directs.
  • Emergency relief is narrow: An ex parte emergency order is not automatic. The clerk must find reasonable cause that an emergency threatens physical well-being or risks substantial injury to the estate, and the order is meant to be temporary while the motion is pending.
  • County and file-location issues: The motion must be filed where the guardianship is docketed. If the ward’s circumstances have changed and another county is more appropriate, a transfer may be requested for good cause, but it still requires a clerk order.

Conclusion

In North Carolina, the usual way to ask to replace a guardian and change how a guardianship is being handled is to file a motion in the cause with the Clerk of Superior Court in the county where the guardianship is docketed. The clerk will set a hearing, and the moving party must serve the motion and notice of hearing on the required parties as directed. If there is a true emergency threatening the ward’s health or estate, the motion can also request temporary emergency relief. Next step: file a motion in the cause with the clerk and obtain a hearing date.

Talk to a Guardianship Attorney

If a parent has been placed under guardianship and a family member wants to replace the current guardian and request a return home, our firm has experienced attorneys who can help explain the process, prepare the motion, and track service and hearing 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.

Category: Guardianship Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.