Your mother doesn’t recognize you some days. She’s writing checks to scammers. She left the stove on — again.
You know something has to change. But she won’t sign a power of attorney. She doesn’t think anything is wrong.
Now what?
In North Carolina, guardianship may be your answer. It’s a court process that gives you the legal authority to make decisions for a parent who can no longer make safe decisions on their own. It’s not easy. It’s not quick. But when there’s no other option, it’s the most powerful tool the law provides.
Here’s how the process works.
Guardianship is a legal relationship created by the court. A guardian is appointed to make decisions and act on behalf of an adult who has been adjudicated — legally determined — to be incompetent.
In North Carolina, guardianship proceedings are governed by Chapter 35A of the General Statutes. The process is handled by the Clerk of Superior Court in the county where your parent lives.
There are three types of guardianship:
Guardian of the Person. This guardian makes decisions about personal care, medical treatment, housing, and daily living. Where does your parent live? What medical treatment do they receive? A guardian of the person decides.
Guardian of the Estate. This guardian manages your parent’s financial affairs — paying bills, managing investments, protecting assets. The guardian of the estate must file an inventory of the ward’s assets and provide regular accountings to the court.
General Guardian. This guardian has the powers of both a guardian of the person and a guardian of the estate. Most families seeking guardianship of an elderly parent pursue a general guardianship.
Each of these can be tailored. North Carolina law allows the court to create limited guardianships that grant authority only in the specific areas where your parent needs help — preserving their independence in the areas where they’re still capable.
North Carolina law favors less restrictive alternatives to guardianship. The NC Judicial Branch encourages families to explore other options before filing a petition.
Durable Power of Attorney. If your parent is still mentally capable of understanding what they’re signing, a durable power of attorney allows them to name someone to handle their financial affairs. This avoids the need for court involvement entirely.
Health Care Power of Attorney. Similarly, a health care power of attorney lets your parent designate someone to make medical decisions if they become unable to do so themselves.
Representative Payee. If the primary concern is managing Social Security or other government benefits, a representative payee arrangement through the Social Security Administration may be sufficient.
The key question is timing. These tools only work if your parent can still understand what they’re signing. Once dementia or another condition has progressed to the point where your parent lacks that capacity, guardianship may be the only option.
This is one of the most important reasons to create an estate plan early — while everyone is still healthy and able to make their own decisions. A power of attorney signed today can prevent a guardianship proceeding years from now.
The guardianship process begins when someone files a petition for adjudication of incompetence with the Clerk of Superior Court. You’ll use form AOC-SP-200, available at any clerk’s office or online through the NC Judicial Branch website.
The petition must include a sworn statement that the information is true, the reasons you believe your parent is incompetent, a description of your parent’s living situation and assets, the name and qualifications of the proposed guardian, and the names and addresses of your parent’s next of kin.
Anyone can file a guardianship petition in North Carolina. You don’t have to be a family member. However, family members are typically given priority when the court selects a guardian.
There is a filing fee, which the court may later reimburse from the ward’s estate — unless the court determines the petitioner didn’t have good reason to start the proceeding.
After you file, the Clerk must take several steps to protect your parent’s rights.
Within five days of the petition being filed, the Clerk sets a hearing date and issues written notice. The petitioner is responsible for mailing copies of the petition and hearing notice to the respondent’s next of kin by first-class mail.
The Clerk will also appoint two important people. First, an attorney to represent your parent’s legal interests. Second, a guardian ad litem — an independent person who investigates the situation, interviews your parent, reviews the evidence, and files a report with the court.
These appointments exist because guardianship strips away fundamental rights. The court takes that seriously.
To assess the nature and extent of your parent’s incapacity, the Clerk may order a multidisciplinary evaluation. This evaluation looks at your parent’s medical condition, mental status, functional abilities, and capacity to make and communicate decisions about their own affairs.
The evaluation helps the court understand not just whether your parent is incapacitated, but in which specific areas they need help. This is important because it determines whether a full or limited guardianship is appropriate.
If your parent has a diagnosis of dementia, Alzheimer’s disease, or another cognitive condition, medical records from their treating physician will be an important part of this evaluation.
The Clerk schedules the hearing no sooner than 10 days and no later than 60 days after the petition is filed, per G.S. § 35A-1108.
At the hearing, you present evidence that your parent meets the legal standard for incompetence. The guardian ad litem presents their report. Your parent — through their appointed attorney — has the right to contest the petition, present their own evidence, and even request a jury trial on the question of competence.
The Clerk evaluates all of the evidence and makes two decisions. First — is your parent legally incompetent? Second — if so, who should serve as guardian?
If the Clerk determines your parent is incompetent, they’ll issue an order of incompetence and appoint a guardian. The Clerk’s decision can be appealed within 10 days.
After the Clerk’s order, you’ll receive letters of appointment — the official document that gives you legal authority to act as guardian. These letters are what banks, doctors, and other institutions need to see before they’ll recognize your authority.
Your responsibilities begin immediately.
Inventory. Within 90 days, you must file a detailed inventory of your parent’s assets with the court, as required by G.S. § 35A-1240.
Annual accountings. You must file regular accountings showing how your parent’s money is being managed — every dollar in, every dollar out. These are reviewed by the Clerk under G.S. § 35A-1250.
Major decisions. Certain decisions — like selling your parent’s real estate or moving them to a long-term care facility — may require additional court approval.
Being a guardian is a serious responsibility. The court is watching, and you can be held personally liable for mismanagement. If you’re not comfortable handling the financial side, you can ask the court to appoint a separate guardian of the estate.
Almost anyone can serve as a guardian in North Carolina, provided they meet a few basic requirements. They must be at least 18 years old, mentally competent, and not have a disqualifying felony conviction.
The court will generally give priority to family members, especially a spouse, adult child, or parent. But the ultimate decision is based on the best interests of the ward — not family preference.
If no suitable family member is available, the court can appoint a public guardian through a local Department of Social Services or another qualified individual.
The costs vary depending on the complexity of the case, but they typically include the filing fee, attorney’s fees for your attorney, the appointed attorney’s fees (paid from the ward’s estate), the guardian ad litem’s fees, and the cost of any required evaluations.
Many of these costs can be reimbursed from the ward’s estate if the court approves. However, if the case is contested — if siblings disagree, for example — legal costs can increase significantly.
Guardianship cases involving elderly parents often bring family tensions to the surface. Siblings may disagree about whether guardianship is necessary. Multiple family members may want to serve as guardian. Questions about financial motives may arise.
These disputes can extend the timeline and increase costs. The court’s primary concern is always the well-being of the parent — not family politics.
If you anticipate disagreement, having an attorney who understands estate planning and guardianship law can make the difference between a smooth process and a prolonged legal battle.
The best guardianship case is the one that never has to be filed.
When your parent is still healthy and capable, an estate plan that includes a durable power of attorney and a health care power of attorney can eliminate the need for guardianship entirely. These documents let your parent choose who will manage their affairs — on their terms, without court involvement.
A revocable living trust adds another layer of protection. Assets held in a trust are managed by a successor trustee if the original trustee becomes incapacitated. No court proceeding required.
The window for these options closes when capacity declines. If your parent can still have a conversation about the future, that conversation should happen now.
Guardianship is one of the most important legal actions you can take for your family. It’s also one of the most emotionally difficult. At Johnson Legal, PLLC, we do not provide support for securing guardianships and advise you to seek qualified counsel.
This article is for informational purposes only and does not constitute legal advice. Guardianship in North Carolina is governed by N.C.G.S. Chapter 35A. Consult with a licensed attorney about your specific circumstances.
Shane T. Johnson is the CEO and Managing Partner of Johnson Legal, an estate planning and business law firm in Wilmington, NC. With years of experience in estate and business law, he has zealously represented clients in various legal matters, including small business formation and purchasing, estate planning, probate, domestic violence, and other legal cases.
Shane received his Juris Doctor from the University of Wyoming and is a member of the North Carolina Bar Association. He has received numerous accolades for his work, including being named among the Best Probate Lawyers in Wilmington by Expertise.com.
