How does living in a memory care facility affect where the guardianship or conservatorship should be filed? – North Carolina

Short Answer

In North Carolina, living in a memory care facility can change (or clarify) the proper county for filing, but it does not automatically do so. For an incompetency/guardianship case, venue is generally proper in the county where the person resides or is domiciled, and it can also be proper where the person is an inpatient in a treatment facility. If a guardianship already exists, the ongoing guardianship case usually stays in the county where the person was adjudicated incompetent unless the clerk transfers it to another county.

Understanding the Problem

In North Carolina guardianship practice, the key question is: when an adult with dementia has lived in a memory care facility for an extended period, which county’s Clerk of Superior Court is the correct place to file (or keep) the guardianship or conservatorship case? This venue question matters because the clerk’s office that has the case will supervise the guardianship, receive filings, and enter orders. The decision point is whether the case is a new filing (starting an incompetency/guardianship) or an existing guardianship that may need to be moved to a different county.

Apply the Law

North Carolina uses a clerk-supervised system for adult incompetency and guardianship matters. Venue rules focus on where the respondent/ward resides or is domiciled, and in some situations where the person is receiving inpatient treatment. If a guardianship already exists, the venue for the appointment (and typically the ongoing file) is tied to the county where the person was adjudicated incompetent, unless the clerk transfers the matter to another county.

Key Requirements

Identify the type of filing: A new incompetency/guardianship filing follows the venue rule for “proceedings” to adjudicate incompetence; an existing guardianship follows the venue rule for where the person was adjudicated incompetent unless transferred.
Determine the person’s legal connection to a county: Venue can turn on where the person “resides” or is “domiciled,” which may or may not be the same as the county where a facility is located.
Confirm whether facility placement creates an additional proper venue: If the person is an inpatient in a treatment facility, that county can be a proper venue for the incompetency proceeding under the statute.

What the Statutes Say

N.C. Gen. Stat. § 35A-1103 (Jurisdiction; venue) – Provides that the clerk has original jurisdiction, and venue for incompetency proceedings is in the county where the respondent resides or is domiciled, or is an inpatient in a treatment facility; if that cannot be determined, venue is where the respondent is present.
N.C. Gen. Stat. § 35A-1204 (Venue) – For an incompetent person, venue for appointment of a guardian is in the county where the person was adjudicated incompetent unless the clerk transfers the matter to a different county.

Analysis

Apply the Rule to the Facts: The facts describe a parent with vascular dementia who has lived in a memory care facility for an extended period, and a child who is already the court-appointed conservator. Under North Carolina’s venue rules, the facility location may be a proper county for an incompetency/guardianship proceeding if the parent is treated as an inpatient in a treatment facility, and it may also be strong evidence of “residence” depending on the circumstances. If the guardianship/conservatorship file already exists in North Carolina, the default venue remains the county where the parent was adjudicated incompetent unless the clerk transfers the matter to the county that now makes the most sense for supervision.

Process & Timing

Who files: Typically a family member, facility, or other interested person files the incompetency petition (and then seeks appointment as guardian). Where: The Clerk of Superior Court in the proper North Carolina county based on residence/domicile or inpatient facility location. What: A verified petition to adjudicate incompetence, followed by the guardianship appointment process in the same clerk’s office. When: Filed when a court order is needed to make decisions that cannot be handled through less restrictive tools (timing depends on safety/decision-making needs).
If there is already a case: The existing guardianship generally stays in the county where the incompetency was decided. If supervision would be more practical in the county of the memory care facility (for example, because most records, care providers, and witnesses are there), a request can be made to transfer the matter, and the clerk decides whether to transfer.
After filing in the correct county: The clerk’s office schedules the required steps in the incompetency proceeding and, if incompetency is found, issues letters and qualification requirements for the appointed guardian (and continues ongoing oversight through required filings and approvals).

Exceptions & Pitfalls

“Resides” versus “domiciled” can point to different counties: A long-term facility placement may look like residence, while domicile may remain tied to a prior home county depending on intent and circumstances. When the answer is unclear, the statute also allows venue where the person is present if residence/domicile cannot be determined.
Existing case controls unless transferred: Even if the ward later moves to a facility in another county, the guardianship case does not automatically move with the ward. A transfer requires clerk action.
Competing filings in multiple counties: If more than one county is a proper venue and multiple proceedings get filed, North Carolina’s venue rule generally favors the county where proceedings were started first.
Facility location is not always the best venue: If most assets, key family decision-makers, or prior court files are in a different county, filing where the facility sits may create practical problems later (including travel for hearings and difficulty coordinating with prior records).

Conclusion

In North Carolina, living in a memory care facility can make the facility’s county a proper place to file an incompetency/guardianship proceeding, but venue can also be proper where the person resides or is domiciled. If a guardianship already exists, the case usually remains in the county where the person was adjudicated incompetent unless the clerk transfers it. The next step is to confirm whether there is an existing North Carolina file and, if so, request a transfer through the Clerk of Superior Court if supervision should occur in the facility’s county.

Talk to a Guardianship Attorney

If you’re dealing with a parent in memory care and need to figure out the correct county to file (or whether an existing case should be transferred), our firm has experienced attorneys who can help explain the venue rules and the steps in the Clerk of Superior Court. 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.