Short Answer

Yes. In North Carolina, a petitioner may voluntarily dismiss a pending guardianship special proceeding without prejudice before any evidence is taken. A dismissal without prejudice closes the file but does not decide the merits, so you may start over later by filing a new petition. You will not “reopen” the old case; you must file a new case and complete new service. Any interim orders usually end when the case is dismissed.

Understanding the Problem

In North Carolina, can a petitioner end a pending guardianship case before the Clerk of Superior Court and preserve the ability to bring it again later? Here, the petitioner filed a guardianship petition about a spouse, and the clerk offered a voluntary dismissal with or without prejudice. The petitioner also must provide notice to an adult child and a court-appointed guardian ad litem.

Apply the Law

Guardianship matters are special proceedings heard by the Clerk of Superior Court. The civil procedure rules generally apply to special proceedings unless a statute provides a different rule. A petitioner may file a written notice of voluntary dismissal without prejudice before any testimony begins; that filing ends the case and cancels scheduled hearings. A dismissal without prejudice does not bar a new, later petition—however, it does not “reopen” the old file. If urgent medical decisions cannot wait, the clerk may consider an interim (emergency) guardian on proper proof; those interim orders typically end when the underlying case is dismissed or as otherwise ordered.

Key Requirements

• Timing of dismissal: File your notice of voluntary dismissal before any evidence is taken; after evidence starts, you generally need the clerk’s approval or consent of parties.
• Serve parties of record: Provide the dismissal notice to all parties who have appeared, including the guardian ad litem and required next of kin, using standard service of subsequent papers.
• Effect on orders: Dismissal ends the proceeding; interim or temporary guardianship orders typically terminate, and the clerk may require a report or accounting.
• Refiling later: You cannot “reopen” the dismissed case. You must file a new petition with a new file number and complete fresh service.
• Forum and trigger: The Clerk of Superior Court handles the case in the proper county; dismissal is effective upon filing the notice (or entry of an order if testimony has begun).

What the Statutes Say

• G.S. 1-393 (Rules apply to special proceedings) – Civil procedure rules apply to special proceedings unless a statute provides otherwise.
• G.S. 1A-1, Rule 41 (Voluntary dismissal) – Allows a party to voluntarily dismiss without prejudice before resting; sets the effect of dismissal.
• G.S. 35A-1114 (Interim guardian) – Authorizes emergency/interim guardianship before the incompetency hearing when immediate action is needed.

Analysis

Apply the Rule to the Facts: Because you are the petitioner, you may file a written notice to voluntarily dismiss the guardianship case without prejudice before any evidence is presented. You should serve that notice on the adult child and the guardian ad litem so everyone who has appeared is informed and hearings can be taken off the calendar. A without-prejudice dismissal ends the file; if you later need guardianship, you will file a new petition and complete new service. Given your spouse is hospitalized and ventilated, consider whether an interim guardian is needed before you dismiss if no other legal authority exists for medical decisions.

Process & Timing

1. Who files: Petitioner. Where: Clerk of Superior Court in the county where the guardianship is pending. What: File a written Notice of Voluntary Dismissal under Rule 41(a). Serve all parties of record (including the guardian ad litem and the adult child) using standard service of subsequent papers. When: File before any testimony is taken to dismiss without needing a court order.
2. The clerk will administratively close the file. If an interim guardian was appointed, the clerk may enter an order addressing termination of authority and require a brief report or accounting. Timeframes vary by county.
3. If you refile later: Start a new case by filing a Petition for Adjudication of Incompetence and Application for Appointment of Guardian (for example, AOC-SP-200) with the Clerk of Superior Court. Arrange Rule 4 service on the respondent and provide required notice to next of kin; the clerk will appoint a guardian ad litem and set a hearing, typically within several weeks depending on county calendars.

Exceptions & Pitfalls

• Hearing already underway: If evidence has begun, dismissal usually requires the clerk’s approval or consent; a unilateral notice may not suffice.
• Gap in decision-making: Dismissing ends interim authority. If urgent medical or financial decisions are needed and no other authority exists, seek an interim guardian before dismissing.
• Notice to parties: Always serve the guardian ad litem and any next of kin who have appeared; failure to do so can cause confusion and missed hearings.
• Refile vs. reopen: A dismissal without prejudice does not reopen later; plan to file a new petition with updated facts and complete new service.

Conclusion

Under North Carolina law, you may voluntarily dismiss a guardianship special proceeding without prejudice before any evidence is taken. That dismissal closes the case and ends interim orders, but it does not bar you from filing a new petition later. The key threshold is timing: file the notice before testimony begins and serve all parties of record, including the guardian ad litem. Next step: file a written Rule 41 notice with the Clerk of Superior Court and promptly serve the parties.

Talk to a Guardianship Attorney

If you’re weighing a dismissal of a pending guardianship or need emergency authority for medical decisions, 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.