If there are multiple close family members, who can be appointed guardian and how are disagreements handled? – North Carolina

Short Answer

In North Carolina, the Clerk of Superior Court appoints a guardian based on the ward’s best interests, even when several close family members are willing to serve. The clerk must consider a statutory order of priority, including certain pre-nominations made in a valid power of attorney, but no family member has an automatic right to be appointed. When family members disagree, the clerk decides after a hearing and can also appoint co-guardians, limit a guardian’s powers, or later remove a guardian who becomes unsuitable.

Understanding the Problem

In North Carolina, when close family members disagree about who should have legal authority to make decisions for an older adult with cognitive impairment in a nursing facility, the key decision point is: who can the Clerk of Superior Court appoint as guardian when more than one family member asks to serve. The question focuses on how the appointment choice gets made and what happens when competing family members cannot agree on a single proposed guardian.

Apply the Law

North Carolina guardianships are handled through the Office of the Clerk of Superior Court. After a person is found incompetent (or when a guardianship is otherwise being set up as the law allows), the clerk appoints a guardian of the person (personal/medical decisions), a guardian of the estate (financial decisions), or a general guardian (both). When multiple relatives seek appointment, the clerk considers a statutory order of priority but must ultimately appoint the person or entity who can most suitably serve and who best protects the ward’s interests.

Key Requirements

Priority is considered, not guaranteed: The clerk considers the statutory priority list, including valid advance nominations, but still chooses what best serves the ward.
Suitability and best interests control: The clerk looks at which candidate can responsibly handle the role (and any conflicts, reliability, and ability to work with care providers).
Disputes are decided by the clerk: If family members disagree, the clerk resolves the dispute through the guardianship process and can structure the appointment to reduce conflict (such as limited powers or co-guardians).

What the Statutes Say

N.C. Gen. Stat. § 35A-1203 (Clerk’s jurisdiction and authority) – Gives the clerk original jurisdiction over adult guardianships and authority to resolve disputes between guardians.
N.C. Gen. Stat. § 35A-1212 (Hearing on appointment of guardian) – Requires the clerk to gather evidence on what guardianship is needed and who can most suitably serve; allows limited guardianship and suitability evaluations.
N.C. Gen. Stat. § 35A-1214 (Priorities for appointment) – Sets the order of priority the clerk must consider, while still requiring an appointment based on the ward’s best interests.
N.C. Gen. Stat. § 35A-1290 (Removal by clerk) – Allows the clerk to remove a guardian for many reasons, including conflict of interest, mismanagement, neglect, or unsuitability.

Analysis

Apply the Rule to the Facts: The facts describe an elderly person in a nursing facility with cognitive disability and a family member seeking authority to make medical decisions. If more than one close family member wants to serve, North Carolina law places the decision with the Clerk of Superior Court, who will consider any valid advance nomination and then decide who can most suitably serve in the ward’s best interests. Because the immediate need described is medical decision-making, the clerk may focus on who should be guardian of the person (or whether a limited guardianship for medical decisions fits the situation).

Process & Timing

Who files: A family member or other interested person. Where: The Office of the Clerk of Superior Court in the county where the allegedly incompetent adult resides (typically where the nursing facility is located). What: The guardianship petition and supporting documents required by the clerk’s office. When: As soon as decision-making authority is needed and the person cannot validly sign a power of attorney.
Hearing and evidence: The clerk holds a hearing on the appointment issue, can receive evidence about the ward’s needs and the candidates’ suitability, and may request an evaluation or a suitability report to help decide between competing family members.
Appointment order: The clerk enters an order appointing a guardian (or co-guardians) and can tailor the appointment, including using limited guardianship when appropriate and setting guardrails to protect the ward.

Exceptions & Pitfalls

Advance nominations can change the priority analysis: If the older adult previously signed a valid document nominating a preferred guardian, the clerk must consider that nomination first in the statutory priority list, but can still decline it if it does not serve the ward’s best interests.
“Closest relative” does not automatically win: The clerk can appoint a different family member (or, when necessary, a corporation or disinterested public agent) if that choice better protects the ward.
Conflict and control fights can backfire: Evidence of hostility, unwillingness to cooperate with care providers, or conflicts of interest can affect suitability and can also support later removal if problems develop.
Guardianship scope matters: Seeking a broad guardianship when the need is mainly medical decision-making can invite objections; the clerk may prefer a limited guardianship that matches the ward’s actual needs.

Conclusion

When multiple close family members seek to serve as guardian in North Carolina, the Clerk of Superior Court considers a statutory order of priority but appoints the guardian based on the ward’s best interests and who can most suitably serve. Disagreements get resolved at a clerk’s hearing, and the clerk can appoint one guardian, co-guardians, or a limited guardian to fit the ward’s needs. A practical next step is to file the guardianship petition with the Clerk of Superior Court in the county of residence and prepare evidence for the appointment hearing.

Talk to a Guardianship Attorney

If a family disagreement is blocking medical decision-making for an older adult with cognitive impairment, our firm has experienced attorneys who can help clarify the North Carolina guardianship process, what evidence matters, and how to present a workable plan to 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.