Can You Subpoena Witnesses for a NC Guardianship Hearing?

Yes. Guardianship proceedings in North Carolina are judicial proceedings, and parties have the right to compel witnesses to appear and testify — including doctors, social workers, care facility staff, and financial professionals. This page explains how the subpoena process works in the context of a guardianship case.

The Legal Basis

Guardianship cases are special proceedings under G.S. Chapter 35A, heard by the Clerk of Superior Court. Special proceedings follow the North Carolina Rules of Civil Procedure, which authorize subpoenas under Rule 45.

A subpoena is a court order directing a specific person to appear and testify, produce documents, or both. Failure to comply with a properly served subpoena is contempt of court.

Two Types of Subpoenas

AOC-G-100: Subpoena (Testimony)

This form compels a witness to appear in person and testify at the hearing. Use this when:

  • You need a treating physician or specialist to testify about the respondent's diagnosis and functional capacity
  • You want a social worker, APS investigator, or DSS caseworker to testify about their observations
  • You need facility staff (a nurse, administrator, or aide) to describe what they have witnessed
  • You want any other witness with personal knowledge of facts at issue

AOC-G-115: Subpoena for Records Only (Subpoena Duces Tecum)

This form compels a person or institution to produce documents — without requiring in-person testimony. Use this when:

  • You need medical records from a hospital, physician's office, or care facility
  • You need financial records from a bank or investment institution
  • You need care facility logs, incident reports, or care plan documentation
  • You need records held by a government agency (DSS files, APS investigation records, court records from another county)

You can also combine both types — compelling a witness to appear and bring specific documents.

How to Issue a Subpoena

Step 1: Obtain the form. AOC-G-100 and AOC-G-115 are available at nccourts.gov.

Step 2: Complete the form. Fill in:

  • The name and address of the person or institution being subpoenaed
  • The date, time, and location of the hearing
  • A description of the documents to be produced (for AOC-G-115) — be specific

Step 3: Get it signed. The subpoena must be signed by the Clerk of Court (or, in some circumstances, by an attorney of record). Bring your completed form to the Clerk's office.

Step 4: Serve the subpoena. The subpoena must be personally served on the witness. Service must be made by someone other than a party — typically the sheriff, a process server, or any adult who is not a party to the case.

Step 5: Tender fees. Under Rule 45, you must tender to the witness their witness fee and mileage at the time of service. The Clerk's office can tell you the current amounts. For institutional record requests (AOC-G-115), fees for copying and production are typically paid to the institution, not upfront.

Timing: Allow Enough Lead Time

Subpoenas for records should be issued well in advance of the hearing — ideally 30 or more days for institutional records. Medical records in particular can take weeks to compile and produce.

Personal appearance subpoenas should be served with enough time for the witness to make arrangements — at minimum one to two weeks, though more is better for professional witnesses.

Subpoenaing Medical Records

When subpoenaing medical records in a guardianship case:

  • Specify the date range relevant to the case
  • Request all records including physician notes, nursing notes, cognitive assessments, care plans, and discharge summaries
  • If the facility is a hospital, direct the subpoena to the medical records department
  • If HIPAA is a concern: a court order accompanying the subpoena — which a subpoena in a judicial proceeding generally constitutes — typically satisfies HIPAA requirements for production of records

Subpoenaing Care Facility Records

If the respondent lives in or recently lived in an adult care home, assisted living facility, or skilled nursing facility, the facility's records may contain critical evidence: documented incidents, care plan notes, staff observations, and records of who visited and what they did.

See: How to subpoena records from a care facility in NC

What Happens If a Witness Refuses

A witness who is properly served with a subpoena and fails to appear (without a valid excuse) can be held in contempt of court. The Clerk can issue an order compelling appearance and imposing sanctions.

If a witness has a legitimate reason they cannot appear — such as a scheduling conflict — they may ask the court to quash or modify the subpoena. The court will evaluate the request.

Can the Respondent Be Compelled to Testify?

The respondent has the right to attend the hearing and may testify voluntarily. Whether the respondent can be compelled to testify against their will is a more complex question involving Fifth Amendment considerations and the respondent's condition. Consult with an attorney if you are considering compelling the respondent's testimony.

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The information on this page is for educational purposes only and does not constitute legal advice. Please consult a licensed North Carolina attorney for guidance specific to your situation. Learn more about ElderAdvocate.law.