Short Answer

Under North Carolina guardianship law, you still have options even if earlier attorneys missed an appeal or restoration filing. If required notice or service was not given, you can ask the Clerk of Superior Court to set aside or reopen the orders, including through a Rule 60 motion. You can also file a restoration motion if the ward has regained capacity, and you may seek to modify or replace the guardian and ask for a stay to protect assets while the court reviews the case.

Understanding the Problem

You are asking, in North Carolina, what you can do if prior lawyers did not file a restoration or appeal after a guardianship was entered and you did not receive notice. The key decision point is whether you can reopen or change the guardianship orders before the Clerk of Superior Court. One salient fact here: you, the injured spouse, did not receive notice of the guardianship that affects your family and assets.

Apply the Law

North Carolina guardianship cases begin and are supervised by the Clerk of Superior Court. The respondent (the adult alleged to be incompetent) must be personally served, and certain family members must receive notice. Appeals from a clerk’s guardianship decisions have short deadlines, but orders entered without required service can be challenged later. Separately, a restoration motion can be filed at any time if the ward’s capacity has returned. If the issue is the selection or conduct of a guardian, you can seek to modify powers, change the guardian, or obtain interim protection while the court reviews the matter.

Key Requirements

• Standing as an interested person: A spouse or other interested person may file motions in the guardianship case to seek relief, including restoration or modification.
• Service and notice: The respondent must be personally served, and next of kin (including a spouse) must receive notice; defects can support setting aside or revisiting orders.
• Appeal deadlines: Appeals from clerk orders in guardianship matters generally follow short timelines (often 10 days from service of the order), so act quickly if you were served.
• Restoration to competency: If the ward has regained capacity, a restoration motion can be filed at any time; the clerk will hold a hearing and can restore rights.
• Relief from judgment: If required service was missing, a Rule 60 motion can attack a void order; other Rule 60 grounds have time limits and require a showing of fairness.
• Forum and interim protection: File in the existing guardianship file with the Clerk of Superior Court; you may request a stay or interim orders to protect assets while the court reviews the case.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1109 (Service and notice) – Requires personal service on the respondent and notice to next of kin and others designated by the clerk.
• North Carolina Gen. Stat. § 35A-1130 (Restoration to competency) – Allows the ward, guardian, or any interested person to seek restoration and requires a hearing.
• North Carolina Gen. Stat. § 1-301.3 (Appeals from clerk in estates and guardianships) – Provides appeal procedures; notice of appeal is generally due within 10 days after service of the order.
• North Carolina Gen. Stat. § 1A-1, Rule 60 (Relief from judgment) – Authorizes setting aside orders for reasons including lack of proper service (void orders) and other limited grounds.

Analysis

Apply the Rule to the Facts: You did not receive notice of the guardianship. If the respondent (your spouse in the facility) was not personally served, the adjudication and appointment can be attacked as void under Rule 60. If your spouse was personally served but you (as next of kin) were not, you can still ask the clerk to reopen or modify the orders due to lack of required notice and to protect your interests. Because prior counsel did not appeal, restoration (if your spouse is now competent), modification of the guardian’s powers, or removal/replacement of the guardian remain available paths.

Process & Timing

1. Who files: You (as an interested spouse) or the ward. Where: Clerk of Superior Court in the county where the guardianship case is pending. What: Motion for Relief from Judgment (Rule 60) and/or Motion for Restoration under G.S. 35A-1130; you may also move to modify or replace the guardian. You can reference standard AOC guardianship forms used in the file (e.g., AOC-SP-200/201/202 and AOC-E-406) and file a verified motion with supporting affidavits. When: Appeals from clerk orders generally must be noticed within 10 days after service of the order; Rule 60 motions for void orders can be filed at any time, while other Rule 60 grounds must be filed within a reasonable time (some within one year).
2. Hearing and interim relief: The clerk will calendar a hearing. Ask for a stay of enforcement under G.S. 1-301.3 while the matter is reviewed, or seek an emergency order to protect assets if there is risk of substantial injury. Timeframes vary by county; hearings are often set within weeks.
3. Decision and orders: The clerk may vacate prior orders, restore rights, modify the guardian’s powers, appoint a different guardian, or deny relief. Any new order will be served, and normal appeal rights run from service.

Exceptions & Pitfalls

• Nonparty status: If you were not made a party, ask the clerk to join you in the special proceeding so you can be heard and seek relief.
• Service defects: Lack of personal service on the respondent is a jurisdictional defect that can support voiding an order; lack of next-of-kin notice can still justify reopening or modifying orders.
• Missed appeal vs. Rule 60: If an appeal deadline passed, Rule 60 may still apply, but some grounds have strict time limits; tailor your motion to the correct subsection.
• Restoration proof: Restoration requires evidence that the ward has regained capacity; obtain current medical support.
• Stays and bond: Without a stay, the guardian may keep acting; request a stay and be prepared to post any bond the court sets.

Talk to a Guardianship Attorney

If you’re facing a North Carolina guardianship that moved forward without your notice or past deadlines were missed, 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.