Short Answer

In North Carolina, the trustee—not the caregiver—controls distributions from a special needs trust and must act in good faith under the trust’s terms for the beneficiary’s benefit. As a primary personal care assistant, your “rights” come from the trust document and any written care-services agreement the trustee approves. If the beneficiary dies, the trustee distributes assets as the trust directs (and, for some trusts, first satisfies required payback obligations) before paying remainders. A backup caregiver can be engaged by the trustee or added through a formal trust change if the document allows.

Understanding the Problem

You want to know what you can do—and ask for—as your child’s 24/7 personal care assistant under a special needs trust governed by another state’s law, while you now live in North Carolina. The key decision point is how the trust’s terms and North Carolina trust procedures shape caregiver payments, authority to add a backup caregiver, and what happens to trust assets when your child passes.

Apply the Law

Under North Carolina’s trust code, the trustee administers the trust according to its terms, in good faith, and for the beneficiary’s interests. The trustee has broad powers to hire and pay agents (including caregivers) if consistent with the trust’s purpose. Internal trust questions (like instructions about permitted distributions) can be brought to the Clerk of Superior Court where the trust is administered; court-driven modifications to change trust terms generally go to Superior Court. If a trust ends, the trustee must distribute assets promptly to those entitled under the instrument.

Key Requirements

• Trustee control: Only the trustee can approve and pay for caregiver services from the trust, and must follow the trust’s purpose and terms.
• Good faith and loyalty: The trustee must act in the beneficiary’s interests and manage conflicts; related-party caregiver arrangements should be documented and fair.
• Caregiver engagement: A written caregiver services agreement, invoices, and time logs help the trustee justify distributions and maintain records.
• Information and instructions: Qualified beneficiaries can request trust information; the trustee or a beneficiary may seek court instructions on administrative questions.
• End-of-trust distributions: On the beneficiary’s death, the trustee distributes as the trust directs, and must do so expeditiously; some trusts require payback before remainders.

What the Statutes Say

• North Carolina Gen. Stat. § 36C-8-801 (Duty to administer trust) – Trustee must administer in good faith per the trust’s terms and purposes.
• North Carolina Gen. Stat. § 36C-8-802 (Duty of loyalty) – Trustee must act solely in beneficiaries’ interests and manage conflicts.
• North Carolina Gen. Stat. § 36C-2-203 (Clerk’s jurisdiction in trust matters) – Sets forum for internal trust administration proceedings.
• North Carolina Gen. Stat. § 36C-8-817 (Distribution on termination) – Trustee must distribute promptly to those entitled.

Analysis

Apply the Rule to the Facts: Because the trust is governed by another state’s law, the trustee still must act in good faith under that instrument; in North Carolina, internal administration questions can be taken to the Clerk for instructions. Your caregiver payments aren’t automatic—you need trustee approval and a clear services agreement that aligns with the trust’s purpose and avoids conflicts. Adding a secondary caregiver can be handled by the trustee hiring one; changing the document to give you appointment power generally requires a formal modification in Superior Court. At death, the trustee distributes per the trust (and satisfies any required payback) before any remainder beneficiaries receive funds.

Process & Timing

1. Who files: Trustee or a qualified beneficiary. Where: Clerk of Superior Court in the North Carolina county of the trust’s principal place of administration. What: Petition for Instructions in a trust proceeding; the clerk issues the Estate Summons for Trust Proceeding (AOC‑E‑150). When: After service, respondents typically have 10 days to answer.
2. If you need to add powers (e.g., to appoint a backup caregiver): Who files: Trustee or beneficiary. Where: Superior Court (judicial modification). What: Civil action to modify administrative terms; procedures follow the Rules of Civil Procedure. When: Timelines vary by county and case; court approval depends on meeting statutory standards.
3. When the beneficiary dies: Who acts: Trustee. What: Wind up the trust, pay allowable expenses and any required payback if applicable, then distribute the remainder per the trust. When: The trustee must distribute expeditiously once obligations are resolved.

Exceptions & Pitfalls

• Governing law and venue: If the trust’s principal place of administration is outside North Carolina and a party objects, the Clerk here may decline to hear administrative proceedings.
• Conflicts of interest: If the trustee is related to or supervises you as caregiver, related‑party payments can be challenged unless authorized by the trust, approved by the court, or consented to by beneficiaries after full disclosure.
• Benefits coordination: Certain distributions for food or shelter can affect needs‑based benefits. Coordinate with the trustee and a benefits planner before changing payment methods.
• Information rights: Caregivers do not automatically have a right to trust information; qualified beneficiaries do. Work through the trustee or the beneficiary’s legal representative to obtain needed details.

Talk to a Estate Planning Attorney

If you’re dealing with caregiver payments, adding a backup caregiver, or end-of-trust decisions under a special needs trust, 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.