Short Answer

In North Carolina, you challenge a guardianship entered without notice or counsel by promptly filing in the existing guardianship case before the Clerk of Superior Court: (1) a motion to set aside the adjudication and appointment for lack of proper notice and violation of the respondent’s rights; and (2) a motion to stay the guardian from selling assets while the challenge is heard. You may also file a petition to restore rights (if capacity has returned) or to modify/replace the guardian. If the order is recent, a 10-day appeal window may apply; otherwise, seek relief under Rule 60(b).

Understanding the Problem

In North Carolina, can a spouse challenge a state guardianship that was entered without notice or legal representation, to stop asset sales and restore decision-making? Here, one spouse was hospitalized when the other was placed under state guardianship without receiving notice of the hearing, and the state guardian now controls joint funds and may liquidate the home. The spouse has recovered and can arrange in‑home care.

Apply the Law

North Carolina adult guardianship cases are special proceedings heard by the Clerk of Superior Court. The law requires proper notice of the incompetency hearing, the right to be present and represented by counsel, and findings supporting any adjudication of incompetence. If those core rights were not honored, you can ask the Clerk to set aside the order, stay guardian actions, and hold a new hearing. You may also seek restoration of rights if the person has regained capacity, or seek modification/removal to replace a public guardian with a suitable family member. Appeals from the Clerk are time‑sensitive, and civil procedure tools (including Rule 60(b)) are available in matters before the Clerk.

Key Requirements

• Notice and service: The respondent must be properly served with the petition and hearing notice, and next of kin (including a spouse) must receive required notice.
• Right to counsel and participation: The respondent has the right to be present, to be represented by counsel (appointed if indigent), and to present evidence.
• Grounds to set aside: Orders entered without required notice or without safeguarding counsel rights can be set aside; long‑standing orders may be attacked under Rule 60(b), especially if void for lack of jurisdiction.
• Restoration of rights: If capacity has returned, file to restore competency and terminate or limit the guardianship.
• Modify/replace guardian: You may petition to remove a guardian for cause and to appoint a suitable substitute (such as a spouse) if in the ward’s best interests.
• Forum and timing: File in the Clerk of Superior Court in the county where the guardianship is pending; appeals have short deadlines (often 10 days).

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1107 (Notice of hearing; service) – Requires service on the respondent and notice to specified relatives.
• North Carolina Gen. Stat. § 35A-1108 (Rights of respondent) – Confirms rights to be present, to counsel (appointed if indigent), and to present evidence.
• North Carolina Gen. Stat. § 35A-1130 (Restoration to competency) – Allows restoration and termination or modification of the guardianship upon recovery.
• North Carolina Gen. Stat. § 1-301.2 (Appeals in special proceedings) – Provides a short deadline to appeal Clerk orders to Superior Court and authorizes stays.

Analysis

Apply the Rule to the Facts: The spouse reports no notice of the guardianship hearing and no representation. That implicates the notice requirements and the respondent’s rights to counsel and participation. Those defects support a motion to set aside and a request for a new hearing, plus a stay of any sale of the home. Because the spouse has recovered and can arrange care, a restoration petition or, alternatively, a request to remove the public guardian and appoint the spouse, are viable remedies.

Process & Timing

1. Who files: The respondent, spouse, or other interested person. Where: Clerk of Superior Court in the county where the guardianship file is open. What: File (a) Motion to Set Aside Guardianship Orders for lack of notice/counsel and Motion to Stay guardian actions; and, as applicable, (b) Petition for Restoration of Competency or Petition to Modify/Remove and Appoint Substitute Guardian. Use the existing guardianship case number and the official AOC guardianship forms available on the NC Courts website. When: If appealing an existing order, file a Notice of Appeal within 10 days of entry under special‑proceeding rules; Rule 60(b) relief must be sought within a reasonable time (void orders can be attacked at any time).
2. Serve all parties (including the current guardian) and request an expedited hearing to prevent asset sales. The Clerk will set a hearing; timelines vary by county. The Clerk may allow limited discovery and can order mediation in matters before the Clerk.
3. Attend the hearing with evidence: proof of lack of notice/counsel, current medical/support documentation, and a care/financial plan. Expected outcomes include: order setting aside and rehearing the case; restoration of rights; or removal of the public guardian and appointment of a suitable substitute, with orders protecting assets.

Exceptions & Pitfalls

• If some statutory notice was given, the court may modify or replace the guardian rather than void the adjudication outright; tailor your request to the defect and the relief you need.
• Missing the short appeal deadline limits your options—use a Rule 60(b) motion to set aside for lack of notice or other fundamental error.
• Serve your motions correctly on all required parties; improper service can delay relief.
• To stop a home sale, request a stay immediately; guardians often need separate court approval to sell real estate, but timing varies—act fast.
• If local counsel conflicts exist, seek counsel from another county; the respondent can ask the court to appoint counsel if indigent.

Talk to a Guardianship Attorney

If you’re dealing with a guardianship entered without notice or counsel and need to stop asset sales or restore rights, 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.