Jan182026
Guardianship Q&A Series

How do I start the guardianship process for a family member who can’t make decisions safely? – North Carolina

Short Answer

In North Carolina, starting an adult guardianship usually begins by filing a verified petition asking the Clerk of Superior Court to decide whether the person is legally “incompetent.” If the clerk adjudicates incompetence, the clerk can then appoint a guardian (of the person, the estate, or both) to make decisions within the limits of the court order. The petition must include basic identifying information, facts showing why the person cannot manage their affairs, and why less restrictive options are not enough.

Understanding the Problem

In North Carolina guardianship cases, the key question is: can a family member ask the Clerk of Superior Court to step in when an adult cannot make or communicate safe decisions, and what must be filed to start that court process? The process focuses on whether the adult meets the legal standard for incompetence and, if so, what type of guardian authority is actually needed. The starting point is not “getting guardianship” immediately; it is starting an incompetency proceeding that can lead to a guardianship appointment.

Apply the Law

North Carolina uses a court process in front of the Clerk of Superior Court to decide whether an adult is “incompetent” and, if so, to appoint an appropriate guardian. The incompetency proceeding is the required gateway in most adult cases, and the clerk’s order can define the nature and extent of the person’s limitations. The petition must also address less restrictive alternatives that were considered and explain why they do not meet the adult’s needs.

Key Requirements

  • File the right type of case with the right office: An adult guardianship typically starts with a verified petition for adjudication of incompetence filed with the Clerk of Superior Court (a special proceeding), usually in the county tied to the adult’s residence/venue rules.
  • Include the required information and facts: The petition must identify the respondent, list next of kin/other interested persons, describe assets in general terms, and state facts showing why the person cannot manage affairs or make/communicate decisions safely.
  • Address less restrictive alternatives: North Carolina requires the petition to identify what alternatives were considered (for example, powers of attorney or other supports) and explain why they are insufficient for the situation.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts provided indicate that a family member is seeking legal help to start a North Carolina guardianship matter and has called to schedule a consultation. Under North Carolina law, the practical first step is preparing and filing a verified incompetency petition with the Clerk of Superior Court and gathering the information the statutes require (family/notice list, a general description of assets, and specific facts showing unsafe decision-making). A key part of building a strong filing is also identifying what less restrictive options were considered and why they do not protect the adult in the current situation.

For example, if the main problem is unsafe medical decisions and wandering, the filing typically focuses on decision-making capacity and personal safety needs, and may support requesting a guardian of the person. If the main problem is unpaid bills, exploitation, or risky spending, the filing often supports requesting authority over finances (guardian of the estate) or a general guardian, depending on what the clerk finds is necessary.

Process & Timing

  1. Who files: Any person can file the verified petition. Where: The Clerk of Superior Court (special proceedings) in the appropriate North Carolina county. What: A verified petition to adjudicate incompetence, and (often) an application to appoint a guardian (which can be filed with the petition or after). When: As soon as there is a real safety/decision-making concern and less restrictive options are not workable.
  2. Notice, representation, and evaluation issues: After filing, the case proceeds on the clerk’s schedule. The respondent generally has rights in the case, and the process often involves appointing a representative for the respondent and gathering evidence (medical records, witness testimony, and other documentation). County practices can differ on forms, scheduling, and what supporting documents the clerk expects early.
  3. Hearing and orders: The clerk holds a hearing to decide incompetence. If the clerk adjudicates incompetence, the clerk can then appoint the appropriate type of guardian and issue letters/orders defining the guardian’s authority.

Exceptions & Pitfalls

  • Skipping less restrictive alternatives: A common problem is filing without clearly explaining what alternatives were tried or considered (for example, powers of attorney, representative payee arrangements, supported decision-making, or help from trusted family) and why they do not work for the situation. North Carolina requires this topic to be addressed in the petition.
  • Requesting the wrong scope of guardianship: Another common mistake is asking for broader authority than needed. North Carolina allows different types of guardians (person, estate, or both), and the clerk can tailor authority to the adult’s needs.
  • Notice and “interested persons” issues: Guardianship cases require identifying and notifying the right people. Missing next of kin or other interested persons can delay the case or create disputes later.
  • Confusing guardianship with a guardian ad litem: In North Carolina, a guardian ad litem is often used to represent someone’s interests in a separate lawsuit, but that is different from a Chapter 35A guardianship that gives ongoing decision-making authority.

Conclusion

In North Carolina, starting guardianship for an adult who cannot make decisions safely usually means filing a verified petition with the Clerk of Superior Court to adjudicate the person incompetent, then seeking appointment of the right type of guardian (person, estate, or both). The petition must include specific facts showing incapacity, a general picture of assets, a list of next of kin/interested persons, and an explanation of why less restrictive alternatives are not enough. The next step is to file the verified incompetency petition with the Clerk of Superior Court in the proper county as soon as the safety concern becomes clear.

Talk to a Guardianship Attorney

If a family member in North Carolina cannot make or communicate safe decisions and a court process may be needed to protect them, our firm has experienced attorneys who can help explain options, prepare the required filings, and map out realistic 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: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.