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. You must notify the proposed ward and other persons entitled to notice under North Carolina law.

The court will schedule a hearing. At the hearing, the clerk reviews evidence and hears testimony, and a jury may be involved if requested. If the clerk finds the person incompetent, the clerk appoints a guardian under N.C.G.S. § 35A-1214. The guardian then files any required bond and receives 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 may avoid probate administration.
• Use a properly drafted special needs trust. When funded by a third party, these trusts generally are not subject to Medicaid estate recovery for the beneficiary’s Medicaid benefits.
• Purchase Medicaid-exempt assets. Medicaid eligibility rules generally exclude a primary residence (subject to equity limits and other rules), one vehicle and household goods.
• Plan distributions carefully. Avoid large gifts before applying for Medicaid, as federal rules under 42 U.S.C. § 1396p impose transfer penalties for certain transfers made during the five-year look-back period.

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 transfer 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.