Understanding the Problem
Moving a guardianship across state lines requires coordination between the North Carolina court and the court in the new state. The process is intended to prevent overlapping authority while preserving the guardian’s ability to care for the person or manage property. Remote attendance is a separate procedural request that should be raised with each court as early as possible.
Apply the Law
Key Requirements
For an adult guardianship, North Carolina uses the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. A North Carolina guardian may petition to transfer the incompetency proceeding and the general guardianship, guardianship of the person, or guardianship of the estate under N.C. Gen. Stat. § 35B-30.
For guardianship of the person, the adult must be physically present in or reasonably expected to move permanently to the other state, any objection must be resolved in the adult’s interests, and the plans for care and services must be reasonable and sufficient. For guardianship of the estate, the adult must be present in, expected to move permanently to, or have a significant connection with the other state; objections must be resolved; and adequate property-management arrangements must be made.
A general guardianship must satisfy all requirements for both guardianship of the person and guardianship of the estate. Accordingly, the adult must be physically present in or reasonably expected to move permanently to the other state; a significant connection alone cannot support transfer of a general guardianship. The care, objection, property-management, and receiving-court requirements must also be met.
What the Statutes Say
Relevant significant-connection factors include family location, time spent in the state, property, voting or vehicle registration, social relationships, and receipt of services. See N.C. Gen. Stat. § 35B-15.
Chapter 35B expressly excludes guardianships involving minors under age 18. See N.C. Gen. Stat. § 35B-3. A minor guardianship therefore requires review of Chapter 35A, the receiving state’s law, and the procedures required by the courts involved.
Notice of an adult transfer petition must be given to the people who would be entitled to notice of a North Carolina incompetency and guardianship proceeding. The North Carolina court must hold a hearing if the court or an authorized participant requests one. If the applicable statutory conditions are satisfied and the other state is expected to accept the matter, the North Carolina court issues a provisional transfer order under N.C. Gen. Stat. § 35B-30.
Analysis
Process & Timing
Begin by filing a transfer petition with the North Carolina clerk of superior court overseeing the guardianship. After North Carolina issues its provisional transfer order, petition the receiving court under that state’s law and provide the documents it requires. Once the receiving court issues provisional acceptance, submit that order and the documents required to terminate the guardianship to the North Carolina court. North Carolina may then enter a final order confirming the transfer and terminating its proceeding, after which the receiving court can complete its final acceptance process.
For remote attendance, contact the clerk early, request permission in the form directed by the court, obtain the approved technology instructions, and test the equipment. North Carolina judicial officials may conduct civil proceedings by approved audio and video transmission, although a party may object and the presiding official controls whether the proceeding will be remote. See N.C. Gen. Stat. § 7A-49.6. A separate request may be necessary in the receiving state.
Exceptions & Pitfalls
Do not assume that living, owning property, or receiving services in the new state automatically satisfies every transfer requirement. A significant connection can support transfer of guardianship of the estate, but guardianship of the person generally requires physical presence or a reasonably expected permanent move, along with sufficient care plans. Because a general guardianship must satisfy both sets of requirements, a significant connection alone is also insufficient for its transfer. An objection may delay or defeat transfer if the objector establishes that transfer would be contrary to the adult’s interests.
Registration and transfer are not always interchangeable. Registration may allow enforcement of an existing out-of-state order without moving the underlying proceeding, while a transfer changes the state responsible for the guardianship. Also, do not close the North Carolina matter before the receiving court has provisionally accepted the transfer and the North Carolina court has entered its final order.
Conclusion
For an adult guardianship, North Carolina first enters a provisional transfer order only after the applicable statutory requirements are met, then enters a final order after receiving the other state’s provisional acceptance and the required termination documents. A general guardianship must satisfy both sets of requirements: the physical-presence or permanent-move threshold and reasonable care plan for the person, plus the estate-transfer and property-management requirements; significant connection alone is insufficient. Ask both clerks about required filings and promptly request approved video participation.
Talk to a Probate Attorney
For help coordinating an interstate guardianship transfer or requesting remote attendance, contact Pierce Law Group for a free case evaluation at [email protected] or (919) 341-7055.
