Does the protected person have to be physically present in the new state before the guardianship transfer can be filed or approved? – North Carolina

Short Answer

Under North Carolina law, the protected person generally does not have to be physically present in the new state before the transfer paperwork can be started. For a North Carolina court to grant a transfer out of North Carolina, the clerk typically must be satisfied that the person is already physically present in the other state or is reasonably expected to move there permanently. Final approval usually happens after the receiving state issues its own provisional acceptance order.

Understanding the Problem

In a North Carolina adult guardianship or conservatorship, the key question is whether a clerk of superior court can allow a transfer to a different state when an incapacitated or protected person is relocating, but has not arrived in the new state yet. The practical issue is timing: can the guardian start the transfer process while planning a move to a memory care facility, or must the move happen first before the court will act.

Apply the Law

North Carolina follows an interstate transfer process that allows a North Carolina guardianship (guardian of the person, guardian of the estate, or general guardian) to be moved to another state through a two-court, two-step approach: (1) a provisional transfer order from North Carolina, and (2) a provisional acceptance order from the receiving state, followed by final orders. For the “presence” issue, North Carolina law focuses on whether the person is already in the receiving state or is reasonably expected to relocate there permanently, rather than requiring the person to be physically present before the transfer is filed.

Key Requirements

Proper petition and notice: The guardian must file a petition to transfer and give notice to the same categories of people who would receive notice in an incompetency/guardianship proceeding.
Move is underway or firmly planned: For a transfer, the clerk must be satisfied the person is physically present in the other state or is reasonably expected to move permanently to the other state (with slightly different wording depending on whether the transfer involves the person, the estate, or both).
Transfer is in the person’s interests and workable: If someone objects, the clerk considers whether the transfer would be contrary to the person’s interests, and whether the care plan (and, for estate matters, property management arrangements) is adequate.

What the Statutes Say

N.C. Gen. Stat. § 35B-30 (Transfer of guardianship to another state) – Allows a North Carolina-appointed guardian to petition to transfer the proceeding and sets the findings the clerk must make, including that the person is physically present in the other state or reasonably expected to move there permanently.
N.C. Gen. Stat. § 35B-31 (Accepting a guardianship transferred from another state) – Describes the North Carolina “receiving state” process (when North Carolina is the new state) and the provisional/final order structure that typically drives timing in both states.

Analysis

Apply the Rule to the Facts: In the scenario where an adult child is relocating an incapacitated parent into a memory care facility in another state, North Carolina law generally allows the guardian to start the transfer petition before the parent arrives. The key is showing the clerk that the parent is reasonably expected to move permanently (for example, a confirmed facility placement plan and a realistic move timeline). If the move is uncertain or temporary, the clerk may be less likely to enter a provisional transfer order.

Process & Timing

Who files: The currently appointed guardian (or guardian/conservator equivalent). Where: The Clerk of Superior Court (Estates/Guardianship) in the North Carolina county where the guardianship is pending. What: A petition to transfer the incompetency/guardianship proceeding to the other state, with supporting details about the planned permanent move and care arrangements. When: Often filed as soon as the relocation plan is stable enough to describe and document.
Provisional transfer order in North Carolina: The clerk may schedule a hearing if requested or if the clerk decides one is needed. If the statutory findings are met (including “physically present in” or “reasonably expected to move permanently”), the clerk can enter a provisional order and direct the guardian to file in the receiving state.
Receiving state acceptance, then final North Carolina order: The guardian petitions the receiving state to accept the case. After the receiving state issues a provisional acceptance order, North Carolina can enter a final order confirming the transfer and terminating the North Carolina proceeding once the required acceptance documents are received.

Exceptions & Pitfalls

“Reasonably expected to move permanently” must be credible: A vague plan to relocate “sometime soon” can lead to delays. A clear plan for residence and care in the new state usually matters.
Objections can slow approval: If an interested person objects, the clerk may require more detail to show the transfer is not contrary to the protected person’s interests.
Two-state coordination issues: North Carolina’s final transfer order depends on receiving-state paperwork. If the receiving state’s process requires additional steps (or effectively requires presence before acceptance), the North Carolina case can remain open longer than expected.

Conclusion

In North Carolina, the protected person usually does not need to be physically present in the new state before a guardianship transfer can be started. For the clerk to grant a provisional transfer order, the guardian generally must show that the person is already in the other state or is reasonably expected to move there permanently, along with a workable care (and, if applicable, property-management) plan. The next step is to file the transfer petition with the North Carolina Clerk of Superior Court and then seek provisional acceptance in the receiving state.

Talk to a Guardianship Attorney

If a family is dealing with an interstate move for an incapacitated parent and needs to transfer a guardianship or conservatorship without disrupting care, our firm has experienced attorneys who can help explain options and timelines. Call us today at [CONTACT NUMBER].

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.