Short Answer

In North Carolina, you begin by filing a verified petition asking the Clerk of Superior Court to adjudicate your father incompetent. You may (and usually should) file your guardianship application at the same time so the court can decide both in one case: first incompetence, then who should serve as guardian. Your father must be personally served, will have a guardian ad litem and the right to an attorney, and the court will hold a hearing before making any decision.

Understanding the Problem

In North Carolina, can a daughter file to have her father declared legally incompetent and have a guardian appointed, and do those filings need to be made together or separately? Here, the daughter wants to start the process but is unsure whether the incompetency hearing and the guardianship request must be combined or can proceed on separate tracks.

Apply the Law

North Carolina law allows any interested person to file a special proceeding to determine whether an adult is incompetent and, if so, to appoint a guardian. The proceeding is filed with the Clerk of Superior Court in the county where the person lives or is present. The court focuses on whether the person lacks sufficient capacity to manage their affairs or to make and communicate important decisions. The court must use the least restrictive option, which can include a limited guardianship. It is common practice to file the guardianship application with the incompetency petition so the court can address both in sequence.

Key Requirements

• Verified petition: File a sworn petition that states facts showing incompetence, identifies next of kin, and lists the person’s general assets, living situation, and care needs.
• Proper venue and filing: File in the Clerk of Superior Court (Special Proceedings) where your father resides or is found.
• Service and notice: Your father must be personally served with the petition and hearing notice; close relatives and other required persons must receive notice.
• Representation and rights: The court appoints a guardian ad litem; your father has the right to an attorney and to a jury on the incompetency issue.
• Evidence and hearing: The court may order a medical/psychological evaluation and will hold a hearing; if incompetence is found, the court immediately considers who should serve as guardian and what powers are necessary.
• Emergency options: If immediate risk exists, you may request an interim (temporary) guardian to protect your father or his property while the case is pending.

What the Statutes Say

• N.C. Gen. Stat. Chapter 35A (Incompetency and Guardianship) – Governs adult incompetency determinations and appointment/powers of guardians.
• N.C. Gen. Stat. Chapter 1A, Rule 17 (Guardian ad litem) – Addresses appointment of a guardian ad litem to protect the interests of a party under disability.
• Official AOC Guardianship Forms (nccourts.gov) – State-issued forms for incompetency and guardianship filings.

Analysis

Apply the Rule to the Facts: As the daughter, you are an “interested person” who can file the case in the county where your father resides. File a verified petition for adjudication of incompetence and, in the same case, file your guardianship application. The court will personally serve your father, appoint a guardian ad litem, and set a hearing. If the court finds him incompetent, it will then decide whether to appoint a limited guardian, guardian of the person, guardian of the estate, or a general guardian.

Process & Timing

1. Who files: The daughter (petitioner). Where: Clerk of Superior Court, Special Proceedings, in the North Carolina county where the father lives or is present. What: Petition for Adjudication of Incompetence and Application for Appointment of Guardian (official AOC guardianship forms) plus any supporting affidavits/medical letters; the clerk will issue a notice of hearing and statement of rights. When: After filing, the respondent must be personally served; hearings are commonly set within several weeks of service, but timing varies by county.
2. The court appoints a guardian ad litem and ensures the father has counsel. The court may order a medical or psychological evaluation. Parties exchange any additional information and prepare for the hearing.
3. At the hearing, the court decides incompetence. If established, the court immediately considers the least restrictive guardianship and enters orders appointing the guardian. The clerk issues Letters of Guardianship to authorize the guardian’s actions.

Exceptions & Pitfalls

• If less restrictive alternatives (like a valid power of attorney) adequately protect your father, the court may limit or deny guardianship.
• Incomplete petitions, missing next-of-kin information, or faulty service can delay the hearing.
• Request any needed medical evaluation early so it is ready for the hearing.
• For urgent risk to person or property, ask for an interim guardian when you file; be prepared to show immediate need.
• If a jury is requested on incompetency, plan for additional time and procedure.

Talk to a Guardianship Attorney

If you’re dealing with an adult incompetency and guardianship filing in North Carolina, 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.