Archive

• Extra! Extra! Read All About It! New Juvenile Law Bulletin – Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work?

  This entry was contributed by Sara DePasquale on June 12, 2019 at 10:59 am and is filed under Child Welfare Law, Juvenile Justice, Juvenile Law.

  Did you know that in a juvenile delinquency court case the juvenile may be placed in the custody of a county’s child welfare department (usually a department of social services (DSS))? A DSS placement through a delinquency action may happen in one of three ways:

  • a nonsecure custody order (G.S. 7B-1902 through -1907),
  • a dispositional order after the juvenile has been adjudicated delinquent (G.S. 7B-2506(1)c.), and/or
  • an order appointing DSS as the juvenile’s guardian of the person (G.S. 7B-2001).

  With each of these types of delinquency orders, there is not an allegation, substantiation, or adjudication that the juvenile is abused, neglected, or dependent (see my last blog post, here, discussing  delinquency as it relates to abuse, neglect, or dependency). Instead, the juvenile’s court involvement is a result of his or her alleged acts of delinquency rather than circumstances created by a parent, guardian, custodian, or caretaker. Each of these three custody orders is a type of delinquency order and not an order related to a juvenile’s abuse, neglect, or dependency. However, at times, as a result of the order placing the juvenile in DSS custody, pieces of abuse, neglect, and dependency law apply in the delinquency case.

  The legal implications of placing a juvenile into DSS custody and resulting foster care as part of a delinquency mat­ter are complex – so complex, that a blog post will not do. Instead, my colleague, Jacquelyn (Jacqui) Greene and I wrote a new extensive juvenile law bulletin discussing these orders and the issues that arise with each type of order. You can access the bulletin, Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work? here. Continue Reading

• Apply Now! Elder Abuse Workshop at the School of Government

  This entry was contributed by Meredith Smith on May 23, 2019 at 2:41 pm and is filed under Guardianship.

   

  Yesterday, the application period opened for a free workshop we will be hosting September 26-27, 2019 at the School of Government in Chapel Hill.* The purpose of the workshop is to bring together stakeholders from around North Carolina to create and grow multidisciplinary teams (MDTs) to address elder abuse in their respective communities.  You can learn details about the workshop and apply here.  Only teams will be accepted to attend the workshop.  This post provides additional information to consider if you and others in your community are interested in forming a team and submitting an application. Continue Reading

• Eight Common Mistakes by Guardians of an Incompetent Adult’s Estate

  This entry was contributed by Meredith Smith on May 1, 2019 at 12:00 pm and is filed under Guardianship, Uncategorized.

  In connection with an upcoming class on guardianship, I recently surveyed a number of clerks of superior court (judicial officials who preside over guardianship cases in NC) about common post-appointment problems among guardians.  My questions focused on non-attorney individuals serving as general guardians and guardians of the estate.  Here are some specific issues identified related to those guardians charged with managing an incompetent adult’s property under G.S. Chapter 35A of the NC General Statutes.  For purposes of this post, “guardian” means a guardian of the estate or general guardian.

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• You May Not Need that Guardian of the Estate After All: Other Methods of Distributing Property to Minors

  This entry was contributed by Meredith Smith on February 2, 2019 at 1:42 am and is filed under Estates.

  A guardian of the estate for any unemancipated minor may be appointed under G.S. Chapter 35A to receive and administer property on the minor’s behalf.  G.S. 35A-1221; G.S. 35A-1251; G.S. 35A-1202(12) (requiring also that the minor must not be married).  This is because such minors are legally incompetent to transact business or give consent for most purposes.  G.S. 35A-1201(a)(6); see G.S. 7B-3507 (rights of emancipated minors).  Unemancipated minors therefore need responsible, accountable adults to handle property or benefits to which they are entitled.  Id. 

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• More on Gifting Authority under the North Carolina Uniform Power of Attorney Act

  This entry was contributed by Meredith Smith on May 11, 2018 at 4:40 pm and is filed under Power of Attorney.

  I previously wrote about an agent’s authority to make gifts under the new North Carolina Uniform Power of Attorney Act (NCUPOAA) that went into effect in North Carolina on January 1, 2018.  There are two additional points to keep in mind if you are an agent, a third party, or a court examining the agent’s authority granted by the principal to make gifts under a POA. Continue Reading

• Third Party Refusals to Accept a Power of Attorney under the New North Carolina Uniform Power of Attorney Act

  This entry was contributed by Meredith Smith on March 29, 2018 at 10:55 pm and is filed under Clerks of Superior Court, Power of Attorney.

  Mary signs a power of attorney (POA) appointing her son, Frank, as her agent authorized to act on her behalf.  The POA is acknowledged by a notary public and states that the agent has the authority to do all acts that the principal could do.  The POA is effective immediately and durable by default under the new North Carolina Uniform Power of Attorney Act (NCPOAA) effective January 1, 2018.   S.L. 2017-153 (S569) (not applicable to health care POAs or consent to health care for a minor under G.S. Chapter 32A).

  Months later, Mary suffers a massive stroke and is no longer able to manage her property or business affairs because she is unable to make or communicate decisions.  Frank retrieves the original POA from Mary’s safe and takes it to the bank and attempts to withdraw money from Mary’s checking account to pay some of her bills.  The bank refuses to accept the POA and conduct the transaction.  A friend of Frank’s notes he had a similar problem with his father’s POA.  He had to ultimately seek court-ordered guardianship of his father to be able to conduct the necessary transactions on his father’s behalf because of the bank’s refusal to accept the POA.   Is Frank stuck because of the bank’s refusal?  Must he obtain guardianship to be able to carry out his duties under the POA on behalf of Mary?

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• The Authority to Make Gifts under the New North Carolina Uniform Power of Attorney Act

  This entry was contributed by Meredith Smith on December 8, 2017 at 12:40 pm and is filed under Guardianship, Power of Attorney.

   

  The new North Carolina Uniform Power of Attorney Act (the Act) goes into effect on January 1, 2018.  I recently blogged about the judicial relief provisions under the Act here.   Next Tuesday, December 12th from noon to 1:15 pm, the School of Government in partnership with the N.C. Administrative Office of the Courts will be offering a free webinar on this new law.  The Honorable James Stanford, Clerk of Superior Court, Orange County, Allison Smith, NCAOC assistant legal counsel, Janice Davies, an attorney with Davies Law, PLLC, and I will be presenting. Anyone can register for the webinar here.  Note, registration closes tomorrow at noon. Continue Reading

• Multidisciplinary Evaluations in Incompetency and Adult Guardianship Proceedings: The Final Report

  This entry was contributed by Meredith Smith on November 10, 2017 at 3:17 pm and is filed under Guardianship.

  We have a new report available at the School of Government (SOG) for your weekend reading.  The report is titled Multidisciplinary Evaluations Assembled by LME/MCOs in Adult Guardianship Proceedings in North Carolina.  Continue Reading

• Show Me the Money: Verification of Adequate Resources Required when Ordering Custody or Guardianship to a Non-Parent in an A/N/D Action

  This entry was contributed by Sara DePasquale on October 25, 2017 at 11:41 am and is filed under Child Welfare Law.

  If you’re a sports fan like me, you probably like sports movies. And if you like sports movies, you know the famous line from Jerry Maguire, “show me the money!” That line has some application to abuse, neglect, or dependency cases – specifically when a court is going to order custody or guardianship of a child who has been adjudicated abused, neglected, or dependent to a person who is not the child’s parent. The Juvenile Code requires that the court first verify that the proposed custodian or guardian “will have adequate resources to care appropriately for the juvenile.” G.S. 7B-903(a)(4), -906.1(j), -600(c).* Continue Reading

• 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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