How can I challenge an incompetency determination and regain guardianship of my parent in North Carolina?
Detailed Answer
In North Carolina, a court may appoint a guardian if it finds by clear and convincing evidence that an adult lacks the capacity to manage personal or financial affairs (N.C.G.S. §35A-1207). If you believe the court erred or your parent’s condition has improved, you can challenge that incompetency determination and seek to regain guardianship.
1. Review the Court Order and Deadlines
Obtain a copy of the judge’s findings of fact and conclusions of law. Note the 30-day deadline to appeal under N.C.G.S. §1-27. Missing this window typically bars an appeal.
2. Gather Updated Medical Evidence
Secure thorough evaluations from qualified healthcare providers. These assessments should address your parent’s current cognitive and decision-making abilities.
3. File a Motion to Rehear or Appeal
You may ask the same superior court to reconsider its decision by filing a motion to rehear. Alternatively, file a notice of appeal in the clerk’s office and prepare the necessary record for the appellate court.
4. Petition to Modify or Terminate the Guardianship
If the medical evidence shows regained capacity, file a petition to modify or terminate the existing guardianship under N.C.G.S. §35A-1214. You can request that the court reduce your role, remove a co-guardian, or end the guardianship entirely.
5. Attend the Hearing and Present Evidence
At the hearing, present new medical reports, witness testimony, and any other proof of improved capacity. The court may appoint an independent evaluator to assess your parent.
6. Seek Restoration of Rights
If the court finds your parent regained capacity, it can terminate the guardianship and restore your parent’s rights under N.C.G.S. §35A-1301 and follow the process in N.C.G.S. §35A-1302.
Key Steps to Challenge and Regain Guardianship
- Review the court’s order and note the 30-day appeal deadline (N.C.G.S. §1-27).
- Obtain current medical evaluations documenting improved capacity.
- File a motion to rehear or file a notice of appeal in superior court.
- Serve all interested parties with your motion or appeal documents.
- File a petition to modify or terminate guardianship under N.C.G.S. §35A-1214.
- Attend the hearing and present medical and witness evidence.
- File a petition for restoration of rights if the court finds capacity restored (N.C.G.S. §35A-1301).
- Prepare for potential independent evaluation ordered by the court.
- Consult an experienced probate attorney for guidance throughout the process.
Take Action Today
Challenging an incompetency finding and regaining guardianship can be complex under North Carolina law. Pierce Law Group’s attorneys handle guardianship matters daily. Let us guide you through each step—from meeting deadlines to presenting medical evidence effectively. Contact us for a consultation by emailing intake@piercelaw.com or calling (919) 341-7055. We stand ready to protect your parent’s rights and help you restore the care you once provided.
