Jan282026
Guardianship Q&A Series

If my spouse is declared incompetent, how does the court decide who becomes the guardian when other relatives are trying to take over? – North Carolina

Short Answer

In North Carolina, the Clerk of Superior Court appoints a guardian based on the ward’s best interest, even when family members disagree. The clerk considers any valid nomination made in a power of attorney (or similar document) and then evaluates who is qualified, suitable, and able to serve without conflicts. A spouse is often a strong candidate, but no one has an automatic right to be appointed if the clerk finds another option better protects the ward.

Understanding the Problem

In North Carolina guardianship cases, the key question is: when a spouse may be declared incompetent and relatives are competing for control, who does the court appoint as guardian and what does the decision turn on? The decision is made in a court proceeding handled by the Clerk of Superior Court, and it often comes down to whether the proposed guardian is appropriate for the role and whether the appointment protects the incompetent spouse’s personal needs and finances.

Apply the Law

North Carolina adult guardianship is handled by the Clerk of Superior Court. After an incompetency adjudication (or alongside it), the clerk decides whether a guardian is needed and, if so, who should serve and in what capacity (guardian of the person, guardian of the estate, or a general guardian). Even if multiple relatives apply, the clerk must base the appointment on the ward’s best interest, while also considering any valid nomination made in advance planning documents and whether the proposed guardian is qualified and free of disqualifying conflicts.

Key Requirements

  • A legal basis to appoint a guardian: The clerk must determine that guardianship is required and what type is needed (person, estate, or both), based on the ward’s needs and circumstances.
  • A qualified and suitable proposed guardian: The proposed guardian must meet statutory qualifications (for example, an appropriate adult individual for a guardian of the person) and be able to carry out the duties responsibly.
  • Best interest and conflict screening: The clerk weighs what arrangement best protects the ward and looks for conflicts of interest or other red flags that could make an applicant inappropriate.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, a spouse seeks guardianship for a spouse in a rehabilitation facility, with a hearing coming up soon and other relatives attempting to be appointed instead. Under North Carolina law, the Clerk of Superior Court will focus on what arrangement best protects the potentially incompetent spouse, including day-to-day care decisions and financial protection if an estate guardian is needed. If the spouse can show suitability (availability, ability to manage care and/or finances, and a plan that reduces conflict and protects the ward), that often supports appointment, but the clerk can still choose another person or split duties if that better serves the ward.

Process & Timing

  1. Who files: Any interested person (often a spouse or other family member). Where: The Clerk of Superior Court in the county with proper venue in North Carolina. What: An application requesting appointment of a guardian (often filed with or after the incompetency petition) identifying next of kin, the requested type of guardianship, and basic information about assets and needs. When: As soon as possible, especially when a hearing is scheduled soon.
  2. Evidence and competing applicants: The clerk can consider testimony and documents relevant to the ward’s needs, the proposed guardian’s ability to serve, and any conflicts. When relatives compete, the clerk typically compares each candidate’s plan for care, ability to manage money (if applicable), relationship history, and whether conflict is likely to harm decision-making.
  3. Appointment structure: The clerk may appoint (a) one person as guardian of the person, (b) a different person or a qualified entity as guardian of the estate, or (c) a general guardian for both roles, depending on what best protects the ward.

Exceptions & Pitfalls

  • Advance planning documents can change the starting point: If the spouse previously signed a valid power of attorney or similar document that nominates a preferred guardian, the clerk must consider that nomination under the statutory priority framework, though the clerk still decides based on best interest.
  • Conflicts of interest and “too close to the facility” issues: Certain relationships to treatment facilities or service providers can disqualify a proposed guardian in some situations. Even when not strictly disqualifying, financial conflicts, strained family dynamics, or a history suggesting self-interest can weigh heavily against appointment.
  • Asking for the wrong type of guardianship: Some cases need only a guardian of the person (care and placement decisions), while others require an estate guardian (money and property) or both. Overreaching can create resistance and may lead the clerk to appoint someone else or split roles.
  • Not presenting a workable care plan: In contested cases, the clerk often looks for practical details—how medical decisions will be coordinated, how placement will be handled, how bills will be paid, and how family communication will be managed to reduce conflict.
  • Mixing up guardianship with other roles: In some legal contexts, a guardian ad litem or an attorney-in-fact may have authority for specific litigation or decisions, but that is not the same as being appointed as the Chapter 35A guardian for ongoing personal and financial decision-making.

For more background on contested appointments, see asking the court to replace a current decision-maker and how guardianship supports medical and placement decisions.

Conclusion

In North Carolina, the Clerk of Superior Court appoints a guardian for an incompetent spouse based on the ward’s best interest, even when relatives disagree. The clerk considers statutory appointment priorities (including certain nominations made in advance planning documents), confirms the proposed guardian is qualified, and screens for conflicts. The most important next step is to file (or respond to) the guardianship application and be prepared to present a clear care-and-safety plan at the scheduled clerk’s hearing.

Talk to a Guardianship Attorney

If a spouse is facing an incompetency hearing and relatives are trying to be appointed as guardian, our firm has experienced attorneys who can help explain the process, prepare evidence, and present a practical plan focused on the ward’s best interest. Call us today at [CONTACT NUMBER].

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.