Short Answer

In North Carolina, you can seek to restore or modify a guardianship so the capable spouse regains decision-making or a limited guardian is appointed. You can also ask the Clerk of Superior Court to stop any unnecessary sale of the home and approve an in-home care plan funded by VA Aid and Attendance. If the current guardian is not acting in the ward’s best interests, you can move to remove and replace that guardian.

Understanding the Problem

You want to secure VA Aid and Attendance and arrange in-home care in North Carolina without losing control over assets. The state (through a public guardian) currently controls one spouse’s money and may sell the home. One salient fact: the other spouse reports receiving no notice of the guardianship hearing and arrived unrepresented. The question is whether, and how, you can restore decision-making rights or limit the guardianship to protect income and the home while funding care.

Apply the Law

North Carolina guardianship law favors the least restrictive option. The Clerk of Superior Court oversees incompetency cases, appoints guardians, and can later restore rights, limit guardianships, or replace a guardian. The respondent must be personally served and next-of-kin notified before the original hearing; an interim guardian can be appointed quickly in emergencies but only for a short, limited period. After adjudication, any sale of major assets typically requires court approval and must serve the ward’s best interests. If the capable spouse can manage finances and arrange care, the court can restore rights or shift to a limited guardianship that preserves control over assets while still protecting the vulnerable spouse.

Key Requirements

• Proper notice and service: The respondent must be personally served; required family notices must go out. Serious defects can justify revisiting prior orders.
• Burden of proof and forum: The Clerk of Superior Court decides incompetency on clear, cogent, and convincing evidence; interim relief requires only reasonable cause.
• Least restrictive alternative: The court must consider restoration or limited guardianship if the ward can safely manage some or all affairs.
• Interim guardianship limits: Emergency authority is narrow and time-limited (initially up to 45 days, extendable once for good cause).
• Guardian accountability: A guardian may be removed or replaced for cause, including mismanagement, conflicts, or acting against the ward’s best interests.
• Protection of major assets: The sale of a ward’s real property typically needs court approval and must be necessary and in the ward’s best interests.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1109 (Service and notice) – Personal service on the respondent and notice to next-of-kin are required.
• North Carolina Gen. Stat. § 35A-1112 (Hearing) – Sets the hearing framework and the clear, cogent, and convincing standard.
• North Carolina Gen. Stat. § 35A-1114 (Interim guardianship) – Allows rapid, limited interim appointments for emergencies; capped durations.
• North Carolina Gen. Stat. § 35A-1290 (Removal of guardian) – Authorizes removal when a guardian is unsuitable, mismanages, or violates duties.

Analysis

Apply the Rule to the Facts: If the competent spouse can now manage finances and arrange care, ask the Clerk to restore rights or modify the guardianship to a limited form so the couple can direct VA Aid and Attendance and hire in-home aides. Because the spouse says no notice was given, raise notice defects; failures in personal service/required family notice can support reopening or modifying orders. To protect the home, move to prohibit any sale absent a clear, court-approved need and a showing of best interests. If the state guardian resists reasonable, safer alternatives, seek removal and appointment of a more suitable guardian (often a family member) or eliminate the guardianship if no longer needed.

Process & Timing

1. Who files: The ward, spouse, or any interested person. Where: Clerk of Superior Court in the county where the guardianship is pending. What: A motion in the existing case to restore rights and/or modify to a limited guardianship; a motion to remove/replace the guardian; and, if needed, an emergency motion to stop the sale and approve an in-home care plan funded by VA benefits. When: File as soon as the competent spouse is able to resume decision-making; interim emergency requests can be heard quickly.
2. The Clerk typically sets hearings promptly; emergency motions may be heard on an expedited basis. Be prepared with medical statements of capacity, a written in-home care plan, proof of VA Aid and Attendance eligibility, and bank/home records.
3. After hearing, the Clerk may enter an order restoring some or all rights, limiting the guardianship, appointing a different guardian, and/or prohibiting asset liquidation. Updated letters of guardianship (if any) issue accordingly.

Exceptions & Pitfalls

• Notice defects: If the respondent was not personally served or required family notice was skipped, ask the Clerk to revisit the orders; do not rely on informal complaints.
• Capacity proof: Restoration or limiting the guardianship requires credible evidence (e.g., clinician statements) that the spouse can manage specific tasks.
• Asset protection: Do not transfer or retitle assets rashly; unauthorized moves can violate fiduciary duties or affect benefits eligibility.
• Home sale: A guardian generally needs court approval and must show necessity and best interests—object promptly if you receive sale notice.
• Guardian conflicts: If the state guardian resists safe, less-restrictive options, move to remove and appoint a suitable alternative focused on in-home care.

Talk to a Guardianship Attorney

If you’re dealing with a contested North Carolina guardianship and need to protect income and the family home while arranging in-home care, 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.