Jan292026
Guardianship Q&A Series

If my relative has no living children, who is allowed to petition the court to become guardian? – North Carolina

Short Answer

In North Carolina, a guardianship case does not require the proposed ward to have living children for someone to start it. Generally, any person may file a verified petition asking the Clerk of Superior Court to adjudicate an adult incompetent, and any individual (or certain entities) may apply to be appointed as the guardian after that. The court then decides who is appropriate based on the person’s needs and the applicant’s suitability, not just family status.

Understanding the Problem

In North Carolina guardianship, the key question is: when an adult appears unable to manage personal or financial decisions and has no living children, who can start the court process and ask the Clerk of Superior Court to appoint a guardian. This question comes up most often when a relative believes an adult in a care facility has dementia and cannot safely handle medical decisions, placement decisions, or money management, and there is no child available to step in.

Apply the Law

North Carolina uses a two-part process handled through the Clerk of Superior Court: (1) a petition to have the adult adjudicated incompetent, and (2) an application to have a guardian appointed (guardian of the person, guardian of the estate, or a general guardian). Under North Carolina law, standing to file is broad: the statutes allow “any person” to file the incompetency petition, and “any individual” (and certain entities) to apply to be appointed guardian. Having no living children does not block the case; it mainly affects who is listed as next of kin and who may be the most practical candidate.

Key Requirements

  • Proper filing (two steps): A verified incompetency petition starts the case; a separate guardian application may be filed with it or after it.
  • Standing is broad: The law allows a wide range of people (including relatives and non-relatives) to file; the Clerk still screens for suitability before appointing anyone.
  • Notice to next of kin and interested persons: Even when there are no living children, the petition must identify next of kin and others with an interest so the court can provide notice and hear objections.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, a relative is concerned about an adult in a long-term care facility who appears to have severe dementia and has no personal phone. Under North Carolina law, the lack of living children does not prevent a case from being filed; a relative can still file the verified incompetency petition with the Clerk of Superior Court and can also apply to be appointed guardian. The petition should identify the closest known next of kin (for example, siblings, nieces/nephews, or other relatives) and explain why less restrictive options (like a valid power of attorney) are not workable given the circumstances.

Process & Timing

  1. Who files: Any person (often a relative) files the incompetency petition; the same person or another candidate may file the guardian application. Where: The Clerk of Superior Court in the county where the respondent resides (often the county tied to the facility, depending on residence facts). What: A verified petition for adjudication of incompetence and an application for appointment of guardian (the clerk’s office typically provides local forms or checklists). When: As soon as there is a real need for court authority to make decisions and less restrictive options are not sufficient.
  2. Investigation and hearing setup: The clerk’s process typically includes appointing a guardian ad litem for the respondent and setting a hearing; notice goes to required family members and other interested persons identified in the petition.
  3. Decision and appointment: If the clerk adjudicates the respondent incompetent, the clerk then considers who should serve as guardian (person, estate, or general) and issues letters/authority documents for the appointed guardian.

Exceptions & Pitfalls

  • Confusing “who can file” with “who will be appointed”: North Carolina allows broad filing, but the clerk may appoint someone other than the petitioner if that better protects the respondent.
  • Missing next-of-kin notice issues: Even with no living children, the petition must still identify next of kin and other interested persons to the extent known; incomplete information can delay the case.
  • Skipping less restrictive alternatives: North Carolina requires the petition to address alternatives considered (like powers of attorney or supported decision-making arrangements) and why they do not meet the respondent’s needs; weak explanations can create pushback or delay.

Conclusion

In North Carolina, the absence of living children does not limit who can start a guardianship case. A verified incompetency petition may be filed with the Clerk of Superior Court by any person, and an application to be appointed guardian may be filed by any individual (and certain entities). The clerk then decides who should serve based on suitability and the adult’s needs. The next step is to file the verified incompetency petition (and, if appropriate, the guardian application) with the Clerk of Superior Court promptly once less restrictive alternatives are not sufficient.

Talk to a Guardianship Attorney

If a family member in a long-term care setting appears unable to make safe decisions and there are no living children to step in, our firm has experienced attorneys who can help explain who can file, what must be included, and what timelines to expect in North Carolina. 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.