What Steps Are Needed to Seek Guardianship or a Conservatorship for an Incapacitated Relative in North Carolina?

Detailed Answer

In North Carolina, the legal tool used to protect an incapacitated adult is called “guardianship.” A Guardian of the Estate performs the same financial-management role that some states label “conservatorship.” Below is a plain-English walk-through of each stage.

1. Confirm the Need and Explore Alternatives

• North Carolina law prefers the least restrictive alternative. Before filing, consider powers of attorney, supported decision-making agreements, or trusts.
• If these options are no longer viable—because the relative cannot understand or sign paperwork—a guardianship may be necessary.

2. Gather Key Information

• Medical records and a doctor’s statement describing the person’s diagnosis and functional limits.
• Names, addresses, and relationships of next of kin.
• Asset list (bank accounts, real estate, insurance).

3. File a Petition

The process starts with a Petition for Adjudication of Incompetence and Application for Guardianship filed with the Clerk of Superior Court in the county where the relative lives. Use form AOC-SP-200.

• Legal standard: the respondent must be “unable to manage his or her own affairs or to make or communicate important decisions” (N.C. Gen. Stat. § 35A-1101).
• Pay the filing fee (currently $120) or apply to proceed as an indigent.

4. Serve Required Parties

• The sheriff personally serves the respondent with the petition and notice of hearing (§ 35A-1106).
• Mail or hand-deliver copies to each next of kin listed on the petition.

5. Multidisciplinary Evaluation (MDE)

• The clerk may order an MDE—an independent assessment by medical, psychological, and social-work professionals (§ 35A-1103).
• The evaluation must be completed within 30 days unless the clerk extends time.

6. Attend the Hearing

• The clerk sits as a judge with the same authority as the Superior Court.
• The respondent has the right to attend, present evidence, and be represented by counsel. If the respondent cannot afford counsel, the clerk appoints one (§ 35A-1107).
• You must prove incapacity by “clear, cogent, and convincing evidence.”

7. Appointment of a Guardian

If the clerk finds the person incompetent, the clerk next determines the type of guardian:

• Guardian of the Person – handles health-care and living decisions.
• Guardian of the Estate – manages money and property.
• General Guardian – combines both roles.

The clerk chooses the guardian in the following order unless good cause exists to skip someone (§ 35A-1214): spouse, next of kin, any other suitable person, or a disinterested public guardian.

8. Post-Appointment Requirements

• Bond – A guardian of the estate must post a surety bond equal to the value of personal property unless waived (§ 35A-1231).
• Inventory – File an inventory of all assets within 90 days (§ 35A-1261).
• Annual Accountings – Show income, expenses, and current assets each year (§ 35A-1264).
• Court Oversight – The clerk can modify, limit, or terminate the guardianship if capacity improves (§ 35A-1130).

Helpful Hints

1. Plan early. Capacity often declines gradually; having updated powers of attorney can spare the family from guardianship proceedings.
2. Document everything. Judges value medical letters and dated examples of unsafe decisions (missed bills, scams, wandering).
3. Stay neutral. Contentious siblings can delay hearings. Consider asking an unrelated professional to serve as guardian to avoid infighting.
4. Mind the bond. A corporate surety bond may require a credit check. Gather asset values before the hearing so the clerk can set a realistic amount.
5. Use restricted accounts. Placing funds in a court-restricted bank account can lower or eliminate the bond premium.
6. Keep receipts. Annual accountings require backup for every expenditure, including cash withdrawals.
7. Seek legal guidance. Guardianship procedure involves strict deadlines; missing one can result in removal or personal liability.

Need help protecting a loved one? Guardianship is a powerful, court-supervised solution, but getting it right requires careful paperwork, medical proof, and ongoing compliance. Our firm’s North Carolina probate attorneys guide families through each step and can appear at hearings anywhere in the state. Call us today at (919) 341-7055 for a confidential consultation.