§ 33B-10. Determination of incapacity; effect. - North Carolina Statutes

§ 33B‑10.  Determinationof incapacity; effect.

(a)        The custodialtrustee shall administer the custodial trust as for an incapacitatedbeneficiary if (i) the custodial trust was created under G.S. 33B‑5, (ii)the transferor has so directed in the instrument creating the custodial trust,(iii) a determination that a beneficiary is an incompetent adult has been madeunder the provisions of Chapter 35A, including a determination of limitedincompetence under the provisions of G.S. 35A‑1112(d), unless the courtprovided otherwise, or (iv) the custodial trustee has determined that thebeneficiary is incapacitated under subsection (b) of this section.

(b)        A custodial trusteemay determine that the beneficiary is incapacitated in reliance upon (i)previous direction or authority given by the beneficiary while notincapacitated, including direction or authority pursuant to a durable power ofattorney, (ii) the certificate of the beneficiary's physician, (iii) authoritygiven to the custodial trustee in the instrument creating the trust todetermine the incapacity of the beneficiary after the creation of the custodialtrust, or (iv) other reasonable evidence.

(c)        If a custodialtrustee for an incapacitated beneficiary determines that the beneficiary'sincapacity has ceased, or that circumstances concerning the beneficiary'sability to manage property and business affairs have changed since the creationof a custodial trust directing administration as for an incapacitatedbeneficiary, the custodial trustee may administer the trust as for abeneficiary who is not incapacitated.

(d)        Regardless ofwhether any determination of incapacity under subsection (b) of this sectionhas or has not been made, the beneficiary, the custodial trustee, or otherperson interested in the custodial trust property or the welfare of thebeneficiary, may petition under the procedures of Chapter 35A for adetermination by the court whether the beneficiary is or continues to beincapacitated as defined in G.S. 33B‑1(8). A determination of incapacitydoes not require appointment of a guardian of the estate unless in thediscretion of the court such appointment is otherwise warranted.

(e)        Incapacity of abeneficiary does not terminate (i) the custodial trust, (ii) any designation ofa successor custodial trustee, (iii) rights or powers of the custodial trustee,or (iv) any immunities of third persons acting on instructions of the custodialtrustee.

(f)         A custodialtrustee shall not be liable for any determinations authorized by this sectionregarding the capacity or incapacity of the beneficiary made in good faith. (1995,c. 486, s. 1.)