Legal Question in Elder Law in North Carolina

Re: no power of attorney or trustee in place

Absent a durable power of attorney, the parent would need to have a Guardian appointed. You can file the appropriate papers to petition for a guardianship with the local Clerk of Superior Court. Like most matters of litigation, a guardianship can be expensive, burdensome and embarrassing. Therefore, it is always best for someone to execute a durable power of attorney naming a representative in the event that they should become incompetent.

Regarding the second part of your question, sometimes legal planning can be done to avoid losing assets in the event that someone must be institutionalized. However, if a guardianship is already necessary, then there are fewer options for protecting assets. Nevertheless, North Carolina law does permit the guardian to engage in some Medicaid planning and therefore, I would recommend that you seek the assistance of a competent elder law attorney if your goal is to preserve assets.