Establishing Guardianship for an Incapacitated Adult

In North Carolina, you start by filing a petition in the clerk of superior court where the person resides. Under N.C.G.S. § 35A-1211, your petition must describe the adult’s functional limitations and include a physician’s medical report. You must notify the proposed ward, close family members and the clerk’s office.

The court will schedule a hearing. At the hearing, the judge reviews evidence and hears testimony. If the judge finds the person cannot manage personal or financial affairs, the court appoints a guardian under N.C.G.S. § 35A-1214. The guardian then files a bond and letters of guardianship. The guardian must act in the ward’s best interest and report regularly to the court.

Protecting Assets from Medicaid Estate Recovery

Medicaid may seek repayment from the estate of a recipient under North Carolina’s estate recovery rules. See N.C.G.S. § 108A-80.21 and N.C.G.S. § 108A-80.22. To limit exposure, consider these strategies:

• Hold exempt assets outside probate. Joint tenancy, payable-on-death accounts and certain personal property avoid probate administration.
• Use a properly drafted special needs trust. When funded by a third party, these trusts protect assets from estate recovery.
• Purchase Medicaid-exempt assets. North Carolina law protects a primary residence (up to certain value), one vehicle and household goods.
• Plan distributions carefully. Avoid large gifts once Medicaid benefits start, as federal rules under 42 U.S.C. § 1396p limit gifting to five years before application.

Key Steps to Protect Your Loved One’s Assets

• Consult an experienced probate attorney early.
• File a clear, medically supported guardianship petition.
• Gather notice and medical documentation before the hearing.
• Set up nonprobate holding methods for exempt assets.
• Consider a third-party special needs trust to shield resources.
• Review Medicaid gifting rules and timing.
• Maintain careful records and court reports after appointment.

Ready to Protect Your Loved One?

Guardianship and Medicaid estate recovery rules can overwhelm families. Pierce Law Group’s attorneys have guided many clients through this process. We help you secure guardianship and shield assets. Email us at intake@piercelaw.com or call (919) 341-7055 to schedule a consultation.