Short Answer

In North Carolina, you cannot simply “take over” a guardianship. You must either (1) bring the case to North Carolina and ask the Clerk of Superior Court to replace the current guardian, or (2) start a new guardianship case here if North Carolina has jurisdiction and your mother’s capacity or needs have changed. The Clerk decides who can most suitably serve, using the least restrictive option, after notice, personal service on your mother, appointment of a guardian ad litem, and a hearing.

Understanding the Problem

In North Carolina, can you be appointed as your mother’s guardian instead of your sibling, now that your mother lives with you here? One key fact: there is an existing full guardianship from another state, and your mother has lived in North Carolina for some time.

Apply the Law

North Carolina’s Clerk of Superior Court handles adult guardianship. If a guardianship exists in another state, North Carolina can take action only if jurisdictional rules are met. Under the interstate guardianship law, North Carolina may exercise jurisdiction when it is your mother’s “home state” (generally, she has lived here at least six consecutive months), in limited emergency situations, or when the prior state declines in favor of North Carolina. Once North Carolina has the case (by transfer/registration or a new filing), the Clerk must choose the least restrictive option and the most suitable guardian, with personal service on your mother and a guardian ad litem appointed for her.

Key Requirements

• Jurisdiction: North Carolina must be the proper forum (home state, significant connection with conditions met, or via transfer/registration; emergencies allow temporary action).
• Proper Proceeding: Either accept/transfer the out-of-state guardianship into North Carolina or file a new petition here if allowed.
• Due Process: Personal service on your mother, notice to interested persons, and appointment of a guardian ad litem before the hearing.
• Least Restrictive Option: The Clerk considers whether to terminate, limit, or continue guardianship based on current abilities and supports.
• Suitability and Priority: The Clerk appoints the person who can most suitably serve, considering statutory priorities and your mother’s best interests.

What the Statutes Say

• N.C. Gen. Stat. § 35B-17 (Jurisdiction under UAGPPJA) – Home state, significant-connection, and other bases for jurisdiction.
• N.C. Gen. Stat. § 35A-1105 (Petition to start guardianship) – Verified petition to begin a case before the Clerk.
• N.C. Gen. Stat. § 35A-1112 (Hearing; burden; order) – Hearing process and clear, cogent, and convincing evidence standard.
• N.C. Gen. Stat. § 35A-1212 (Appointment; inquiry) – Clerk’s inquiry into needed scope and who can most suitably serve.

Analysis

Apply the Rule to the Facts: Because your mother has lived in North Carolina for some time, North Carolina likely qualifies as her home state, giving the Clerk authority to act. With an existing out-of-state order, you would first transfer or register that guardianship here or, if appropriate, start a new proceeding. At the hearing, you would present evidence that replacing your sibling with you is in your mother’s best interest and that a limited or terminated guardianship is feasible if she can manage parts of her life.

Process & Timing

1. Who files: You. Where: Clerk of Superior Court in the North Carolina county where your mother resides. What: If there is a valid out-of-state order, file to accept a transfer or register it under North Carolina’s interstate guardianship law; then file a motion to remove the current guardian and appoint you as successor. If starting fresh in NC, file AOC-SP-200 (Petition) and request appointment, modification to a limited guardianship, or termination if appropriate; notice issues are handled with AOC-SP-201. When: After your mother has been in NC at least six consecutive months for “home state” jurisdiction, unless an emergency permits earlier temporary relief.
2. After filing, the Clerk ensures personal service on your mother and appoints a guardian ad litem. Gather medical and functional evidence and proposed care plans in NC. Hearings in many counties are scheduled within weeks, but timing varies.
3. At the hearing, the Clerk decides jurisdiction, needed scope (terminate, limit, or continue), and who can most suitably serve. If you are appointed, the Clerk issues orders (AOC-SP-202 for adjudication if needed; AOC-E-406 for appointment). You take an oath, and if a guardian of the estate is appointed, a bond may be required before Letters issue.

Exceptions & Pitfalls

• Out-of-state orders remain effective until properly transferred or registered; do not ignore the existing order.
• If your mother’s condition has improved, restoration of rights or a limited guardianship may be more appropriate than replacement of the guardian.
• Personal service on your mother and appointment of a guardian ad litem are required; missing these steps can delay or derail the case.
• Moving a person solely to gain a tactical advantage can trigger jurisdictional objections and potential cost-shifting for unjustifiable conduct under the interstate law.
• Removal of a current guardian requires cause and a showing that you can more suitably serve; be prepared with specific, current evidence.

Talk to a Guardianship Attorney

If you’re dealing with replacing an out-of-state guardian or modifying a guardianship in North Carolina, 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.