Jan292026
Guardianship Q&A Series

What can I do to request a new evaluation of my parent’s capacity after they were declared incompetent during a hospital stay? – North Carolina

Short Answer

In North Carolina, a new look at a parent’s capacity usually happens through a motion to restore the ward to competency filed with the Clerk of Superior Court in the existing guardianship case. The motion must be verified and should include facts showing the parent is now competent (or was misjudged), and the clerk can order a new multidisciplinary evaluation. If the concern is that the original incompetency decision was wrong because of a flawed hearing, an appeal to Superior Court for a new (de novo) hearing may also be available, but deadlines can be short.

Understanding the Problem

In North Carolina guardianship cases, the key question is: can a family member ask the court system to take a fresh look at an older parent’s decision-making capacity after an incompetency finding made during a hospital stay? The decision point is whether the request is aimed at updating capacity now (because the parent’s condition has improved or the hospital snapshot was misleading) or challenging the original incompetency ruling (because the hearing process or evidence was unreliable). The forum for both issues is the Clerk of Superior Court (and sometimes the Superior Court on appeal), within the existing guardianship/incompetency file.

Apply the Law

North Carolina treats an incompetency adjudication as a court finding that can be revisited through specific procedures. After an adjudication, the law allows a ward, the guardian, or another interested person to file a verified motion asking the clerk to restore the ward to competency. At that restoration hearing, the ward has rights to representation and can request a jury, and the clerk can order a new multidisciplinary evaluation to assess current functioning. Separately, North Carolina law also allows an appeal from the clerk’s incompetency order to Superior Court for a new hearing (trial de novo), and an appeal generally does not pause the guardianship unless a court orders a stay.

Key Requirements

  • Use the correct procedure: A request for a “new evaluation” is typically made through a verified motion in the cause seeking restoration to competency in the existing case, or through an appeal if the goal is to challenge the original ruling.
  • Allege facts showing competency (or meaningful improvement): The filing should lay out concrete facts that tend to show the parent can now manage personal and/or financial decisions (or that the prior assessment was a temporary hospital-related picture).
  • Follow notice and hearing rules: The clerk sets a hearing and the motion and notice must be served on required parties; the ward has rights to counsel/guardian ad litem and may request a jury in a restoration proceeding.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe an older parent with mild memory issues who was declared incompetent during a hospital stay, followed by a guardianship established through remote hearings that allegedly relied on inaccurate allegations. Under North Carolina procedure, the most direct way to request a new capacity assessment is to file a verified restoration motion in the existing case and ask the clerk to order a multidisciplinary evaluation focused on current functioning outside the hospital setting. If the main concern is that the original incompetency decision lacked basic hearing protections (like a fair chance to present evidence and challenge allegations), an appeal route may fit better, but timing and procedural steps matter.

Process & Timing

  1. Who files: The ward, the guardian, or another “interested person” (often a close family member). Where: With the Clerk of Superior Court in the county where the incompetency/guardianship special proceeding is pending. What: A verified motion in the cause requesting restoration to competency and (if helpful) requesting that the clerk order a multidisciplinary evaluation. When: The clerk generally sets the hearing date not less than 10 days and not more than 30 days from service, unless the clerk finds good cause to do otherwise.
  2. Serve the motion and notice correctly: The motion and notice of hearing must be served on the ward and the guardian (whichever is not the petitioner) and other parties to the incompetency proceeding, using civil summons-style service rules. Service problems are a common reason hearings get delayed or orders get challenged.
  3. Prepare for the hearing: The ward has the right to representation by counsel or a guardian ad litem, and a jury can be requested in a restoration proceeding. Evidence often includes updated medical/functional information, observations from people who see the parent in daily life, and records showing how the parent handles decisions outside a crisis setting.

Exceptions & Pitfalls

  • Mixing up “restoration” vs. “appeal”: A restoration motion focuses on whether the parent is competent now (or should be restored). An appeal focuses on whether the original incompetency adjudication was legally or factually wrong. Choosing the wrong path can waste time.
  • Relying only on general complaints about the prior hearing: Clerks usually need concrete, current facts tied to capacity (and, if challenging the past process, specific procedural defects). A verified motion should be detailed and fact-based.
  • Not requesting an evaluation when the record is stale: If the incompetency finding came from a hospital snapshot, requesting a current multidisciplinary evaluation can help the clerk evaluate present capacity in a more stable setting.
  • Service and notice errors: Even strong cases can stall if the motion and notice are not served correctly on the required parties.

Conclusion

In North Carolina, the usual way to request a new look at a parent’s capacity after an incompetency finding is to file a verified motion for restoration to competency in the existing guardianship case with the Clerk of Superior Court and ask for a current evaluation if needed. The motion must state facts showing competency, and the clerk sets a hearing with service and notice requirements. The most important next step is to file the verified restoration motion with the clerk and promptly serve it so the hearing can be scheduled within the statutory time window.

Talk to a Guardianship Attorney

If a parent was declared incompetent during a hospital stay and there is a need for a new capacity evaluation or a review of what happened in the court process, our firm has experienced attorneys who can help explain options, evidence to gather, and timelines 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.