Short Answer

Yes—under North Carolina law, a trust can authorize the trustee to hire and pay a secondary (backup) personal care assistant for a special needs beneficiary. The trustee must act prudently and avoid conflicts of interest; if the trustee or a family member will be paid, the trust should expressly allow it, or the trustee should obtain beneficiary consent or court approval. If the trust lacks this language, you can often add it through a targeted modification or similar process.

Understanding the Problem

You want to know if a North Carolina-governed trust can provide for a secondary personal care assistant and how that works within estate planning for a special needs trust. You currently provide 24/7 care for your child and want a named backup person if you cannot serve.

Apply the Law

In North Carolina, trustees may hire caregivers and other agents if doing so advances the trust’s purposes and the beneficiary’s interests. When the trustee or a close family member will be paid, the duty of loyalty and conflict-of-interest rules apply. Trusts can also name a “power holder” (sometimes called a trust advisor/protector) with authority to direct caregiver selection. On the beneficiary’s death, the trustee must wind up and distribute the trust according to its terms, with special needs trusts following different remainder rules depending on how they were funded.

Key Requirements

• Authority to hire/pay caregivers: The trustee can employ and compensate agents (including caregivers) if reasonable and aligned with the trust’s purposes.
• Conflict-of-interest safeguards: If the trustee or a family member will be paid, the trust should expressly authorize it, or the trustee should obtain consent or court approval to avoid a voidable transaction.
• Use of a power holder: The trust may name a person with power to direct the trustee on caregiver selection/changes; the trustee then follows that direction.
• Accounting and oversight: Keep written caregiver agreements, time logs, and rates consistent with market norms; beneficiaries can seek review, and the Clerk of Superior Court can review compensation issues.
• Termination/distribution at death: On the beneficiary’s death, the trustee must promptly wind up the trust and distribute per its terms; first-party SNTs typically address required payback before any remainder.

What the Statutes Say

• N.C. Gen. Stat. § 36C-8-807 (Delegation of duties) – A trustee may prudently delegate functions (such as hiring caregivers) and must monitor the agent.
• N.C. Gen. Stat. § 36C-8-802 (Duty of loyalty/conflicts) – Transactions affected by a trustee conflict are voidable unless authorized by the trust, approved by the court, or consented to by beneficiaries.
• N.C. Gen. Stat. § 36C-8A-804 (Directions of a power holder) – A trustee must follow a designated power holder’s authorized directions.
• N.C. Gen. Stat. § 36C-8-817 (Distribution on termination) – After termination (e.g., at the beneficiary’s death), the trustee must distribute assets expeditiously to those entitled.

Analysis

Apply the Rule to the Facts: Your trustee can generally hire a secondary personal care assistant if it benefits your child and the trust permits such expenses. Because you provide 24/7 care, if you or a family member may be paid as the backup, the duty of loyalty requires either express authorization in the trust or beneficiary consent/court approval to avoid a conflict challenge. To address uncertainty about distributions at your child’s death, your trustee must follow the trust’s remainder terms and handle any required payback before distributing rest.

Process & Timing

1. Who files: Trustee or an interested beneficiary. Where: Clerk of Superior Court (trust proceedings) in the North Carolina county where the trust is administered. What: If the trust already authorizes paying/appointing a secondary caregiver, implement a written caregiver agreement; if not, file a verified petition to modify terms narrowly (e.g., to authorize paying a named backup caregiver or to appoint a power holder to direct caregiver selection). When: File as soon as the need is foreseeable; hearings typically occur in weeks to a few months, varying by county.
2. Provide notice to qualified beneficiaries. If the trustee (or a family member) will be compensated, consider seeking consent from affected beneficiaries or requesting court approval to cure conflicts and set reasonableness benchmarks.
3. After approval or confirmation of authority, the trustee signs the caregiver agreement with the secondary assistant, keeps time logs and invoices, and continues routine trust reporting. On the beneficiary’s death, the trustee winds up the trust, satisfies any required payback (if applicable), and distributes the remainder per the trust, then closes administration.

Exceptions & Pitfalls

• If the trustee or a close relative will be paid as the secondary caregiver without clear trust authorization, the payment may be challenged as a conflicted transaction; cure with explicit trust language, beneficiary consent, or court approval.
• Compensation must be reasonable; document market rates, duties, and hours with a written agreement and timesheets.
• Benefit programs may treat some in-kind support differently; structure payments as services for the beneficiary’s sole benefit and coordinate with benefits counsel if needed.
• On termination, first-party and third-party special needs trusts handle remainders differently; ensure the trustee promptly accounts and distributes per the trust’s terms.

Talk to a Estate Planning Attorney

If you’re dealing with how to name and pay a backup caregiver through 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.