Jan292026
Guardianship Q&A Series

What happens if there was an incompetency finding when my child was a teenager—do we have to start the process over as an adult? – North Carolina

Short Answer

In North Carolina, it depends on what the earlier “incompetency finding” actually was and which court entered it. If the teen was formally adjudicated incompetent under Chapter 35A (often through the Clerk of Superior Court), that adjudication can remain in place after age 18, and the focus is usually on the existing guardianship file (including whether a guardian is already appointed and whether venue should be transferred). If the earlier finding came from a different type of case (like a juvenile, school, or treatment setting) and was not a Chapter 35A adjudication, a new adult incompetency/guardianship case typically must be filed.

Understanding the Problem

In North Carolina guardianship, the key question is whether a prior incompetency determination made during the teenage years was a formal court adjudication that still controls once the child reaches adulthood. The decision point is whether the earlier order was a Chapter 35A incompetency adjudication handled through the Clerk of Superior Court (the process used to declare someone legally “incompetent” for guardianship purposes). If it was not, then an adult guardianship usually requires starting the Chapter 35A process so the Clerk can decide whether an adult is incompetent and, if so, appoint the right type of guardian.

Apply the Law

North Carolina uses Chapter 35A as the exclusive procedure to adjudicate a person as an incompetent adult (or incompetent child) for guardianship purposes. A guardianship case generally has two connected steps: (1) an incompetency proceeding to determine whether the person is legally incompetent, and (2) an appointment proceeding to name a guardian (guardian of the person, guardian of the estate, or a general guardian). A petition to adjudicate incompetence may be filed for an adult, and it may also be filed for a minor who is within six months of turning 18, which is often how families plan for the transition to adulthood.

Key Requirements

  • Correct type of prior order: A prior Chapter 35A adjudication is different from a “capacity” or “incompetency” finding in other settings; the Chapter 35A adjudication is the one that drives guardianship authority.
  • Current legal status and forum: Incompetency and guardianship proceedings are handled through the Clerk of Superior Court (estates/guardianship division), and the file location (venue) matters for what happens next.
  • Need for guardianship and least-restrictive options: The petition must explain facts showing why an adjudication is sought and identify less restrictive alternatives considered and why they are not sufficient.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe an adult child with a history of being deemed mentally incapable, no power of attorney or advance directives, and a recent situation involving leaving a facility and a third party attempting to become representative payee for benefits. If there was a true Chapter 35A adjudication when the child was a teenager (often filed within six months of turning 18), the family may be able to work within that existing guardianship/incompetency file—especially if a guardian was appointed and the issue now is enforcing authority, updating placement decisions, or transferring the case to the county where the adult child should be served. If the earlier “finding” was not a Chapter 35A adjudication, then the Clerk generally needs a new Chapter 35A adult petition and hearing to create enforceable guardianship authority that third parties (including facilities) recognize.

Process & Timing

  1. Who files: A parent or other interested person. Where: The Estates/Guardianship division of the Clerk of Superior Court (venue depends on whether there is an existing incompetency/guardianship file and where it is pending). What: A verified petition to adjudicate incompetence and an application to appoint a guardian (often filed together). When: If the person is already an adult, the petition can be filed now; if the person is still a minor but within six months of turning 18, the statute allows filing during that window.
  2. Hearing and decision-maker: The Clerk holds a hearing (or a jury decides if properly requested). The petitioner must present evidence supporting incompetence, and the respondent has rights in the process, including representation.
  3. Appointment and next steps: If incompetence is found, the Clerk appoints the appropriate guardian type (person, estate, or general). If the goal is to move the adult child to a facility in a different county, counsel often evaluates whether a transfer of the guardianship file is appropriate for practical supervision and future filings.

Exceptions & Pitfalls

  • Not every “incompetency finding” is a Chapter 35A adjudication: A school, medical, or program determination (or even a different court’s finding in another type of case) may not create guardianship authority. The safest approach is to obtain and review the actual order and case type.
  • Mixing up custody concepts with guardianship: North Carolina treats adult guardianship (Chapter 35A) differently from custody concepts that can sometimes extend past 18 in limited situations. Once a Chapter 35A adjudication/guardianship exists, disputes about control and placement generally belong with the Clerk in the guardianship file, not in a custody case.
  • Benefits control is separate from guardianship: Guardianship can help with decision-making and documentation, but a representative payee decision is made by the benefits agency. Fast action with the agency can be important when someone else attempts to take over payments; guardianship is often part of the broader plan, not the only step.
  • Venue and transfer issues: If the adult child is located in a different county than the existing file, a transfer may be needed for practical case management; filing in the wrong place can delay relief.

Conclusion

In North Carolina, a teenage “incompetency finding” only carries forward into adulthood for guardianship purposes if it was a formal Chapter 35A adjudication handled through the Clerk of Superior Court. If that adjudication exists, the next step is usually working within (or transferring) the existing guardianship/incompetency file rather than starting from scratch. If it does not exist, a new adult Chapter 35A petition and hearing are typically required. A practical next step is to obtain the prior court order and file number and confirm whether it was a Chapter 35A adjudication.

Talk to a Guardianship Attorney

If a prior teenage incompetency order exists and an adult guardianship is needed now—especially where benefits, placement, or third-party interference is involved—our firm has experienced attorneys who can help explain options, confirm what the old order does (and does not) accomplish, and map out the fastest path through the Clerk of Superior Court. Call us today at 919-341-7055. For more background, see getting guardianship of an adult child and steps to address representative payee problems.

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.