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North Carolina Adults Becoming Wards of the State

Posted on: November 26th, 2015
North Carolina guardianshipNorth Carolina officials are bracing for a tremendous influx of incompetent adults with no legal guardians. The number of adults under the legal authority of the state in 2017 is expected to be about 6,000. This is double the figure from just a decade prior, according to the North Carolina Department of Health and Human Services. 

This number encompasses both senior age individuals as well as young adults. The state is experiencing a number of young adults with special needs or disabilities who do not have a relative to support them. North Carolina Public Radio WUNC recently aired a segment on this anticipated climb in young adult wards. Many of the younger adults who are declared incompetent suffer mental illness, which requires specialized care that is not readily available in all care centers.

A few items North Carolina families should consider:
  1. Powers of attorney. Every adult can benefit from having up-to-date powers of attorney as part of their estate plan. These tools help to ensure that an individual’s assets and finances are managed by a trusted party in the event the individual becomes incompetent. Health care powers of attorney similarly grant another person authority over the individual’s medical needs, which can help to prevent important treatment delays and ensure healthcare decisions are made timely and by a dependable person. Without one, the court must be petitioned to appoint a party over the incompetent individual’s affairs.
  2. Special Needs Trusts. Individuals of any age can be named beneficiaries of a Special Needs Trust (SNT). There are no restrictions for the type or number of special needs or disabilities the individual must have in order to establish a trust for his or her benefit. The trusts allow the individual to receive distributions while at the same time remaining eligible for public benefits like Medicaid. However, disabled persons who could benefit from these tools are not legally allowed to establish their own trusts and must rely on a parent or guardian to do so. The Special Needs Trust Fairness Act passed the Senate in September 2015 and, if it passes into law, will grant special needs persons the power to establish their own trusts. 
  3. Pending legislation reviews. In addition to the Special Needs Trust Fairness Act, which will affect individuals on a national level, there are legislation changes in North Carolina that affect persons with disabilities. For instance, North Carolina Senate Bill 676 was passed into law on October 15, 2015. The legislation was made in efforts to provide coverage for autism spectrum disorder treatments. The new provisions reclassify autism for insurance purposes, removing it from mental illness categories. It also places an initial annual $40,000 cap on autism behavior benefits. According to the statutes: 
Coverage for adaptive behavior treatment under this section may be subject to a maximum benefit of up to forty thousand dollars ($40,000) per year and may be limited to individuals 18 years of age or younger. Beginning in 2017 and for subsequent years, the amount shall be indexed using the Consumer Price Index for All Urban Consumers for the South Region and shall be rounded to the nearest whole thousand dollars.

Regular reviews with a special needs planning attorney can help identify laws that could disrupt a current care plan. Receive updates about North Carolina legislation changes by subscribing to our blog.

By Attorney Samantha Reichle
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