Short Answer

In North Carolina, you generally have two main paths after missing the 10‑day appeal window: (1) ask the Clerk of Superior Court to set aside the guardianship order for lack of proper service/notice, and (2) file a petition to restore your spouse’s rights and terminate or modify the guardianship. If a lack of service made the order void, a motion to set it aside can be brought even after appeal deadlines. You can also request immediate protective orders to pause questionable asset moves while the court reviews the case.

Understanding the Problem

You want to undo a North Carolina adult guardianship entered for your spouse. You missed the appeal deadline and, importantly, you were never served with the guardianship petition or hearing notice. The questions are: can you reopen or undo the order now, and what filings give you the fastest protection for your spouse and your home?

Apply the Law

North Carolina guardianship cases are heard by the Clerk of Superior Court. If the respondent (your spouse) was not properly served or key next of kin did not receive required notice, the court can set aside an order entered without jurisdiction. Separately, a competent adult may have rights restored and a guardianship terminated or narrowed. If an appeal deadline has passed, you may still seek relief by a motion to set aside a void order and by a petition for restoration. While the court considers those filings, you can ask for interim protections to prevent asset transfers.

Key Requirements

• Proper service and notice: The respondent must be personally served, and certain relatives must receive statutory notice before the hearing. Orders entered without required service/notice can be challenged.
• Restoration of rights: The court may restore rights and end or limit a guardianship if the respondent is now competent or never lacked capacity.
• Relief from judgment: A motion to set aside a judgment that is void for lack of service/notice is available even after appeal deadlines.
• Forum and filings: File in the existing guardianship file with the Clerk of Superior Court in the county where the case is pending.
• Interim protection: You can request a stay and protective orders that restrict the guardian from transferring or encumbering assets until the court rules.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1108 (Notice and service) – Requires service on the respondent and notice to specified persons before adjudication.
• North Carolina Gen. Stat. § 35A-1130 (Restoration to competency) – Allows a petition to restore rights and terminate or modify the guardianship.
• North Carolina Gen. Stat. § 35A-1115 (Appeal) – Sets the short appeal window from the clerk’s order.
• North Carolina Gen. Stat. § 1A‑1, Rule 60(b) (Relief from judgment) – Authorizes setting aside void judgments, including those entered without proper service.

Analysis

Apply the Rule to the Facts: Because you were never served and received no notice, the court can consider a motion to set aside the guardianship order as void. If your spouse is of sound mind, a petition to restore rights is a parallel path to terminate or narrow the guardianship. Prior counsel’s failure to appeal does not prevent these filings; relief from a void order and restoration petitions are available after appeal deadlines.

Process & Timing

1. Who files: You (and/or your spouse) as an interested party. Where: Clerk of Superior Court, in the same county and file number as the guardianship. What: (a) Motion to Set Aside Guardianship Order for lack of service/notice; (b) Petition for Restoration of Rights/Termination or Modification of Guardianship (use the official AOC restoration petition available at nccourts.gov). When: File as soon as possible; if you are served with any new order, the appeal deadline is generally 10 days from service.
2. Request interim protection: in the same filings, ask the clerk to stay the guardian’s authority to transfer or encumber assets, require or increase bond, and order an immediate inventory/accounting. Courts often set these hearings on a short timeline; local practice varies by county.
3. Hearing and outcome: the clerk hears evidence on service/notice and on current capacity. Potential results include vacating the prior order, restoring rights and terminating the guardianship, or modifying the guardianship and replacing/restricting the guardian. A written order will issue, and any party served may have a short appeal window.

Exceptions & Pitfalls

• If service was actually proper, a Rule 60(b) “void judgment” argument may not apply; focus on restoration or modification instead.
• Bring proof: medical records and witness testimony help establish current capacity for restoration.
• Serve all required parties (including the appointed guardian and next of kin) under Rule 4; defective service can delay relief.
• Ask the clerk for a stay and protective orders early to minimize risk to the marital home and accounts while your motions are pending.
• County procedures and hearing calendars vary. Confirm any local filing preferences and form usage with the Clerk’s office.

Talk to a Guardianship Attorney

If you’re dealing with a guardianship entered without proper notice and need to protect your spouse and home, 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.