What legal remedies exist when a guardian is appointed based on housing discrimination? – North Carolina

Short Answer

In North Carolina, no one can be placed under guardianship without a filed petition, notice, and an adjudication of incompetence after a hearing (or a short, emergency interim order with strict limits). If a facility was appointed guardian without that process, you can ask the Clerk of Superior Court to vacate the appointment as void, dismiss the case, or both. If there was a valid adjudication, you can seek restoration of rights or modify/replace the guardian. Housing discrimination facts may support that less restrictive alternatives were ignored.

Understanding the Problem

You want to know whether North Carolina law lets you undo a guardianship that arose after your adult child was denied housing due to a mental disability, when there was no competency hearing or adjudication. You also want to know whether you must file a restoration of capacity motion, and how to either end the guardianship or replace the facility with you as guardian.

Apply the Law

North Carolina’s guardianship laws require a verified petition, personal service and notice, appointment of a guardian ad litem or counsel for the respondent, and a hearing where incompetence is proven by clear, cogent, and convincing evidence before a guardian may be appointed. Interim guardianship is allowed only on reasonable cause and immediate risk, and it is strictly temporary. Guardianship for adults is a last resort; the Clerk must consider less restrictive alternatives and tailor any order to preserve the adult’s retained rights. After appointment, the court may modify the scope, remove or replace a guardian, or restore the ward’s rights. If an order was entered without the required petition or adjudication, you can seek to have it declared void and set aside.

Key Requirements

• Start with process: A verified petition, personal service on the respondent, notice to next-of-kin, and appointment of a guardian ad litem or counsel are required before adjudication and appointment.
• Hearing and proof: The Clerk holds a hearing and may adjudicate incompetence only on clear, cogent, and convincing evidence; hearings are typically scheduled 10–30 days after service.
• Emergency interim orders: An interim guardian requires reasonable cause and imminent risk, lasts up to 45 days (one 45-day extension possible), and expires unless a final adjudication follows.
• Least restrictive alternative: Guardianship must be a last resort; the Clerk should consider supported decision-making or other tools and limit any order to what is necessary.
• Change or end guardianship: Use a motion in the cause to modify scope, terminate, or remove/replace the guardian; use a verified restoration motion to restore rights if there was a prior adjudication.
• Void orders: If no petition, service, or adjudication occurred, move to vacate as void under Rule 60(b)(4) and dismiss the matter.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1102 (Exclusive procedure) – Guardianship requires the statutory adjudication process.
• North Carolina Gen. Stat. § 35A-1112 (Adjudication of incompetence) – Hearing; clear, cogent, and convincing evidence; order; then appointment.
• North Carolina Gen. Stat. § 35A-1114 (Interim guardian) – Emergency standard and strict 45-day limit (one extension).
• North Carolina Gen. Stat. § 35A-1130 (Restoration to competency) – Verified motion; hearing; restoration standard and process.

Analysis

Apply the Rule to the Facts: Public records reflecting no petition or adjudication, coupled with appointment of a facility as guardian, suggests the Clerk did not follow the required process. That points to a void appointment you can move to vacate and dismiss. Because you report no adjudication, you likely do not need a restoration motion; restoration applies when a valid adjudication exists. If the court concludes guardianship is still needed, you can seek a limited guardianship and ask to be appointed, showing you best meet the ward’s needs and that less restrictive alternatives were considered.

Process & Timing

1. Who files: The ward, a parent, or any interested person. Where: Clerk of Superior Court in the county where the guardianship is docketed. What: (a) Motion to Vacate Void Appointment and to Dismiss (Rule 60(b)(4)); (b) If a valid adjudication exists, file AOC-SP-215 (Motion for Restoration to Competency) and AOC-SP-216 (Notice/Order Appointing GAL); (c) If guardianship remains, file a motion to modify or to remove/replace the guardian (AOC-E-415 is commonly used to modify). When: File promptly; appeals of clerk orders generally require notice within 10 days of service.
2. Expect the Clerk to set a hearing; timing varies by county. For restoration, the ward may request a jury of six; the Clerk can order an evaluation. For removal/replacement, be prepared to show the proposed change serves the ward’s better care and maintenance.
3. Final step: If the appointment is vacated, the Clerk should cancel letters; if restored, the Clerk should enter an order restoring all rights; if the guardian is changed or scope modified, the Clerk will enter a new order and issue updated letters through the Estates Division.

Exceptions & Pitfalls

• If there was an interim order, it could only last 45 days (one 45-day extension). Long-running “interim” control without adjudication is improper.
• Confirm the special proceeding file exists (look for an SP-200 petition and SP-202 adjudication order). Absence of these supports a void appointment.
• Pick the right vehicle: use restoration only if there was an adjudication; otherwise seek to vacate as void and dismiss.
• Serve all required parties. Motions in the cause require proper notice; restoration requires a verified motion and counsel/GAL for the ward.
• If guardianship remains necessary, propose less restrictive alternatives or a limited guardianship tailored to the ward’s abilities, and show why you are the most suitable guardian.

Talk to a Guardianship Attorney

If you’re dealing with a guardianship that appears to have been imposed without a proper adjudication—or you need to restore rights or replace a guardian—our firm has experienced attorneys who can help you understand your options and timelines. 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.