Feb52026
Guardianship Q&A Series

Do I need guardianship to move a relative with dementia into a memory care facility in a new state? – North Carolina

Short Answer

Not always. Under North Carolina law, a court guardianship is usually needed only when the person with dementia cannot legally consent and there is no valid decision-maker already in place (such as a health care agent under a health care power of attorney) who can authorize the move and admission decisions. If a valid health care power of attorney exists (including one signed in another state that meets that state’s formalities), it may be enough for many care and placement decisions, but facilities and the destination state’s rules can still create practical hurdles.

Understanding the Problem

In North Carolina guardianship cases, the key question is often: can a family member move an older relative with dementia across state lines and admit that person to a memory care facility without first getting a court-appointed guardian? The decision point usually turns on whether someone already has clear legal authority to make personal and health-care decisions for the person with dementia, and whether the move and admission can be handled through that authority rather than through a court process.

Apply the Law

In North Carolina, guardianship is a court process handled through the Clerk of Superior Court. If an adult is found “incompetent” in a legal sense, the clerk can appoint a guardian of the person (for care, custody, and placement decisions), a guardian of the estate (for money and property decisions), or a general guardian (both). If the person still has capacity to sign documents, a properly executed health care power of attorney can authorize an agent to make health-care decisions, which often includes decisions tied to care and placement. North Carolina also recognizes certain out-of-state health care powers of attorney if they appear properly executed under the other jurisdiction’s rules.

Key Requirements

  • Authority to decide: Either the person with dementia can still consent, or a legally recognized decision-maker (health care agent or court-appointed guardian) can consent on the person’s behalf.
  • Appropriate scope of authority: The document or court order must cover the type of decision involved (health-care decisions versus financial/contract decisions).
  • Proper forum if guardianship is needed: Guardianship appointments for an incompetent adult are made by the Clerk of Superior Court in the proper North Carolina county, and the clerk retains ongoing oversight after appointment.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The situation involves moving older relatives from one jurisdiction to another, with one relative who has dementia and will be placed in memory care. If that relative already signed a valid health care power of attorney naming an agent, the agent may be able to handle many admission and care-consent steps without a North Carolina guardianship case. If there is no valid power of attorney (or the document is too limited, disputed, or rejected by the facility), a North Carolina guardianship through the Clerk of Superior Court may be the cleanest way to establish clear authority for placement decisions.

Process & Timing

  1. Who files: Typically a family member or other interested person. Where: The Clerk of Superior Court in the appropriate North Carolina county. What: A petition to have the person adjudicated incompetent (if not already) and an application to appoint a guardian (guardian of the person, guardian of the estate, or general guardian). When: As soon as it becomes clear the move/admission cannot be completed with existing authority.
  2. Next step: The clerk schedules the matter and the case proceeds under the clerk’s supervision, including notice and the court’s determination of whether guardianship is needed and, if so, who should serve.
  3. Final step: If the clerk appoints a guardian, the guardian receives legal authority defined by the appointment (for personal decisions, financial decisions, or both), which can then be used to coordinate the move and memory care admission.

Exceptions & Pitfalls

  • “Health care” versus “money” authority: A health care power of attorney can be strong for medical and care-consent decisions, but it does not automatically give broad authority over finances or contracts. A separate financial power of attorney or a guardian of the estate may be needed for payment, asset access, or contract-related issues.
  • Out-of-state document acceptance: North Carolina may recognize an out-of-state health care power of attorney, but a facility (or the destination state) may still require additional paperwork, updated forms, or proof that the agent’s authority is active.
  • Capacity and timing: If dementia has progressed to the point that the person cannot validly sign new documents, waiting can remove the option to solve the problem with powers of attorney and leave guardianship as the main route.
  • Wrong county or incomplete filings: Guardianship is handled by the Clerk of Superior Court and requires specific information in the application; incomplete filings can delay appointment when time matters.

Conclusion

In North Carolina, guardianship is not automatically required to move a relative with dementia into memory care in another state, but it is often required when there is no valid, workable decision-maker already in place. The core issue is legal authority to consent to care and placement decisions. If a move cannot be completed using existing documents, the next step is to file for guardianship through the Clerk of Superior Court in the proper county as early as possible to meet the planned admission timeline.

Talk to a Guardianship Attorney

If a family is dealing with a cross-state move for an older relative with dementia and a memory care facility is asking for “guardianship papers,” our firm has experienced attorneys who can help clarify what authority is needed and what timelines apply in North Carolina. 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.

Category: Guardianship Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.