What steps do I need to take to remove someone as agent and become my parent’s court-appointed guardian? – North Carolina

Short Answer

In North Carolina, you can ask the Clerk of Superior Court to (1) review and, if appropriate, suspend or remove the current agent under a power of attorney, and (2) appoint you as guardian if your parent lacks capacity. You do this by filing a guardianship petition and, in a related filing, a request for court review of the agent’s conduct. The court can order an accounting, freeze risky transfers, and appoint a guardian if clear, cogent, and convincing evidence shows your parent cannot manage personal or financial affairs.

Understanding the Problem

In North Carolina, can you ask the court to remove an existing power-of-attorney agent and appoint you as your parent’s guardian? You are the adult child, your parent is the respondent, and you seek court relief to replace an agent and obtain guardianship. The trigger here is that you received a written revocation from your parent despite a diagnosis of Alzheimer’s.

Apply the Law

North Carolina handles adult guardianship as a special proceeding before the Clerk of Superior Court. To appoint a guardian, the court must first adjudicate the adult “incompetent” under state law. The clerk may appoint a guardian of the person, a guardian of the estate, or a general guardian. The court also has authority to review an agent’s actions under a power of attorney, require an accounting, restrain transactions, or remove the agent if warranted. Venue is typically the county where your parent resides. After filing, the sheriff serves your parent; the court appoints a guardian ad litem if needed, may order a medical evaluation, and holds a hearing. The proof standard is clear, cogent, and convincing evidence.

Key Requirements

• Show legal incapacity: Prove your parent cannot manage personal or financial affairs due to cognitive impairment or another condition.
• Proper filing and notice: File a verified petition with the Clerk of Superior Court in the correct county and ensure Rule 4 service on your parent; the court will appoint a guardian ad litem if appropriate.
• Evidence of need: Provide medical information and specific facts showing risks (e.g., confusion, unsafe spending) and why less-restrictive options are insufficient.
• Agent review/removal: Ask the court to review the agent’s conduct, order an accounting, and suspend or remove the agent if actions breach duties or risk loss.
• Appropriate guardian: Show you are suitable to serve; the court may tailor a limited guardianship or appoint a neutral if family conflict is significant.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1101 (Definitions; incompetent adult) – Defines incompetence for adult guardianship.
• North Carolina Gen. Stat. § 35A-1105 (Petition) – Sets petition content and initiates the proceeding.
• North Carolina Gen. Stat. § 35A-1106 (Venue) – Establishes where to file the case.
• North Carolina Gen. Stat. § 32C-1-116 (Judicial relief) – Allows the court to review an agent’s conduct, order an accounting, and grant appropriate relief.

Analysis

Apply the Rule to the Facts: Your parent’s Alzheimer’s diagnosis and the revocation letter raise two issues: capacity and agent oversight. If your parent lacks capacity, the court can adjudicate incompetence and appoint a guardian. You can simultaneously ask the court to review the agent’s conduct, require an accounting of the “large” account you manage, and suspend or remove the agent if the facts show risk or breach. If the court finds your parent still has capacity, guardianship will be denied and the revocation may stand.

Process & Timing

1. Who files: You (an interested person). Where: Clerk of Superior Court in your parent’s county of residence in North Carolina. What: File a verified Petition for Adjudication of Incompetence and Application for Appointment of Guardian (AOC-SP-200) and a separate petition under Chapter 32C requesting judicial relief regarding the agent (accounting, suspension, or removal). When: File promptly; request emergency or interim relief if assets are at immediate risk.
2. After filing, the sheriff serves your parent; the court appoints a guardian ad litem if indicated, may order a medical evaluation, and schedules a hearing. Some counties set hearings within several weeks; timing varies by county and case complexity.
3. At the hearing, the clerk decides capacity and, if appropriate, appoints a guardian (of the person, estate, or general). The clerk issues an order and Letters of Guardianship. On the POA petition, the clerk can order an accounting, restrain transactions, and suspend or remove the agent.

Exceptions & Pitfalls

• If your parent still has capacity, the court will not appoint a guardian and a revocation of POA will likely be effective.
• Courts favor less-restrictive options; be prepared to explain why a limited guardianship or continued POA oversight is not enough.
• Service and notice are formal; improper service on your parent or interested parties can delay the hearing.
• Family conflict can influence the choice of guardian; the court may appoint a neutral if disputes are intense.
• Keep detailed records; allegations of “theft” are common and the court may order an accounting.

Talk to a Guardianship Attorney

If you’re dealing with an urgent guardianship and power-of-attorney dispute, 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.