Archive

• Judicial Relief under the New GS Chapter 32C, the North Carolina Uniform Power of Attorney Act

  This entry was contributed by Meredith Smith on September 1, 2017 at 5:29 pm and is filed under Clerks of Superior Court, Estates, Guardianship, Power of Attorney.

  On July 20, 2017, Governor Cooper signed Session Law 2017-153 (S569) known as the North Carolina Uniform Power of Attorney Act (NCPOAA).  This new law goes into effect on January 1, 2018 and applies to powers of attorney (POA) in North Carolina.  It repeals provisions in GS Chapter 32A that pertain primarily to financial POAs, including the statutory short form POA in Article 1 and the enforcement provisions in Article 5.  It creates a new GS Chapter 32C.  It does not apply to POAs that grant authority to a person to make health care decisions for another person.  Article 3, health care POAs, and Article 4, consent to health care for a minor, under GS Chapter 32A continue to apply and are mostly unaffected by the NCPOAA.

  The NCPOAA adopts, in large part, the Uniform Power of Attorney Act published by the Uniform Law Commission (ULC).  In both the uniform law and the NCPOAA, there are sections on judicial relief.  As noted by the ULC, the purpose of this judicial relief is two-fold: (i) to protect vulnerable or incapacitated persons who grant authority to another under a POA against financial abuse, and (ii) to protect the self-determination rights of the principal.  Uniform Power of Attorney Act, Comment, Sec. 116.

  The judicial relief provisions as adopted in NC are heavily modified from the uniform law.  This is due in part to the fact that the judicial relief provisions under the NCPOAA specifically list proceedings that may be brought under the act and allocate jurisdiction over those proceedings between the clerk, who serves as the ex officio judge of probate in NC, and the superior or district court.  The distribution of jurisdiction under the NCPOAA among these judicial officials mirrors estate proceedings under GS 28A-2-4.  There are proceedings that are exclusively within the clerk’s jurisdiction, ones that are initiated before the clerk but may be transferred by a party to superior court, and then finally proceedings that are excluded from the clerk’s jurisdiction.  The NCPOAA also sets forth the procedures, standing, venue, and appeal rights for these proceedings.

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• Legitimation versus Paternity: What’s the Difference?

  This entry was contributed by Sara DePasquale on March 23, 2016 at 9:59 am and is filed under Child Welfare Law.

  *This post was updated on 10/24/16 to add citations for district court jurisdiction of paternity actions

  Earlier this month, my colleague, Meredith Smith, posted about Intestate Succession Rights and Children Born Out of Wedlock. Her post was prompted by In re Estate of Williams, ___ N.C. App. ___ (March 1, 2016), which addressed the application of G.S. 29-19(b) when determining whether the decedent’s child was an heir entitled to intestate succession. What caught my attention in the opinion were excerpts from both the orders of the clerk and the superior court  that referred to the process of legitimating a child pursuant to G.S. 29-19(b)(1) and (3). However, G.S. 29-19(b) addresses paternity, not legitimation. Legitimation for purposes of intestate succession is addressed in G.S. 29-18 (father and mother) and G.S. 29-19(a) (mother). So what is the difference? Continue Reading

• Intestate Succession Rights and Children Born Out of Wedlock

  This entry was contributed by Meredith Smith on March 4, 2016 at 2:25 pm and is filed under Estates.

  A 21-year old unmarried man dies without a will. An application for letters of administration is filed with the clerk of superior court by his mother and father. The only persons identified on the application as entitled to share in the decedent’s estate are his mother and father. No spouse or child is listed. No property is listed on the preliminary inventory included in the application as property of the estate or property that may be added to the estate to pay claims. The only other property identified is a potential claim from wrongful death under G.S. 28A-18-2. Based upon the application and an oath/affirmation from both parents, the clerk of superior court enters an order authorizing the issuance of letters and issues letters of administration to the parents of the decedent.

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