Jan142026
Guardianship Q&A Series

How do we get guardianship over an incapacitated adult so we can make medical and placement decisions? – North Carolina

Short Answer

In North Carolina, getting guardianship for an incapacitated adult usually takes two steps in front of the Clerk of Superior Court: (1) a case to have the adult legally adjudicated “incompetent,” and (2) a case to appoint the right type of guardian (often a guardian of the person) to make medical and placement decisions. A family member or other interested person can file the paperwork, and the clerk will hold a hearing and decide whether guardianship is needed and who should serve. If the situation is urgent, the court process may allow temporary action while the full case moves forward, but the long-term authority generally comes from the clerk’s guardianship order.

Understanding the Problem

In North Carolina guardianship cases, the key question is whether a hospitalized adult who is mentally incapacitated can be placed under a court-ordered guardian so another person has legal authority to make medical decisions and decide on a safe care setting (such as rehabilitation or a facility) when the adult cannot make or communicate informed choices. The trigger is the adult’s inability to manage personal decision-making, especially when discharge planning and placement decisions must be made quickly and there is no workable alternative decision-maker already in place.

Apply the Law

North Carolina treats adult guardianship as a court process handled through the Clerk of Superior Court. The law generally requires an adjudication of incompetence first, and then an appointment of a guardian with powers tailored to the adult’s needs. For medical and placement decisions, the most common appointment is a guardian of the person (authority over care, custody, and control), though some cases require a general guardian if both personal decisions and financial/property decisions must be handled. The clerk can also order a limited guardianship if the adult needs help only in specific areas, rather than a full transfer of decision-making authority.

Key Requirements

  • Adjudication of incompetence: The clerk must determine, through the statutory process, that the adult lacks sufficient capacity to manage personal affairs or make/communicate important decisions.
  • Right type and scope of guardianship: The application should match the need (often guardian of the person for medical and placement decisions), and the clerk may limit powers to what is necessary.
  • Suitable guardian: The clerk decides who can most appropriately serve, considering the adult’s needs, family situation, and any concerns about conflict, safety, or ability to carry out duties.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe an adult who is hospitalized, mentally incapacitated, and has been released without a safe plan, but now needs 24/7 care and rehabilitation. That pattern often fits the first requirement—an incompetency case—because placement and treatment decisions require informed consent and coordination that the adult may not be able to provide. If the main need is medical consent and choosing a safe setting (rehab, skilled nursing, or another supervised placement), the requested appointment is commonly a guardian of the person, and the application should explain why limited authority is not enough (or, if appropriate, why limited authority is sufficient). The clerk will still focus on whether the proposed guardian is suitable and whether the scope requested matches the adult’s actual functional limits.

Process & Timing

  1. Who files: A family member or other interested person (and in some situations an agency or provider). Where: The Clerk of Superior Court in the appropriate North Carolina county. What: A verified petition to adjudicate incompetence and an application to appoint a guardian (often filed together). When: As soon as it becomes clear that medical consent and safe placement cannot be handled through an existing, valid decision-maker.
  2. Evaluation and hearing preparation: The court process typically involves gathering medical information about capacity and notifying required parties. The clerk may require additional evaluation or information to understand the adult’s functional limits and what decisions must be delegated.
  3. Hearing and appointment: The clerk holds a hearing to decide incompetence and, if appropriate, appoints a guardian (and may tailor the guardianship as limited or general). After appointment, the guardian can present the court documents to hospitals, rehabilitation providers, and facilities to coordinate consent and placement decisions within the scope of the order.

Exceptions & Pitfalls

  • Existing authority documents: If the adult previously signed a valid health care power of attorney or other decision-making document, the court may need to address how that interacts with guardianship, and the guardianship request may need to be narrower or structured around that existing authority.
  • Asking for the wrong type of guardian: Medical and placement decisions usually point toward a guardian of the person. If the filing asks only for control of money/property, it may not solve the hospital/rehab placement problem.
  • Overbroad requests: North Carolina courts can tailor guardianship. If the evidence supports only limited help, requesting a full guardianship without justification can slow the case and create avoidable conflict.
  • Family conflict and suitability concerns: If relatives disagree or there are concerns about safety, access, or decision-making, the clerk may require more evidence, appoint a neutral guardian, or limit powers.
  • Assuming “next of kin” equals legal authority: Hospitals often consult family, but long-term legal authority for placement and consent typically requires a valid power of attorney/health care agent or a court-appointed guardian.

For more background on urgent guardianship options and how courts handle fast-moving situations, see emergency guardianship and how to evaluate guardianship versus other court processes when medical decision-making is being challenged.

Conclusion

In North Carolina, guardianship authority to make medical and placement decisions for an incapacitated adult usually requires (1) filing a verified petition with the Clerk of Superior Court to adjudicate the adult incompetent and (2) applying to appoint a guardian with the right scope, often a guardian of the person. The clerk can tailor the guardianship to what is necessary, including limited authority. The practical next step is to file the incompetency petition and guardianship application with the clerk as soon as discharge and placement decisions cannot be made through an existing, valid decision-maker.

Talk to a Guardianship Attorney

If a hospitalized adult is mentally incapacitated and a safe care plan depends on someone having legal authority for medical and placement decisions, our firm has experienced attorneys who can help explain options, paperwork, 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.

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.