Articles in the Clerks of Superior Court category - Page 2 of 2

At the end of a hearing, the clerk who is the presiding judicial official orally announces (or “renders”) her decision from the bench in favor of the petitioner seeking relief from the court.  The clerk instructs the attorney for the petitioner to prepare an order with appropriate findings of fact and conclusions of law and to return the order to the court for review within two weeks.  The clerk receives the order from the attorney ten days later.  The clerk reviews the written order, makes a few changes to some findings of fact (remember, in the end it is the court’s order and not the attorney’s order who drafted it), and then signs and files it.  Next to the clerk’s signature on the order is the date the order is signed and the earlier date of the hearing along with the words “nunc pro tunc.”

Does the clerk generally have the authority to enter an order nunc pro tunc?  What is the meaning of this phrase? What is the clerk’s authority to enter an order nunc pro tunc in these specific circumstances?  That’s the subject of today’s post.

READ POST "The Clerk and Nunc Pro Tunc (October 18, 2017)"

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.

In my previous post, I discussed elder abuse and the court’s role in the protection of adults against such abuse through adult protective services (APS).   An incompetency and guardianship proceeding filed before the clerk of superior court under G.S. Chapter 35A is another mechanism that can be used to protect an older adult from elder abuse when the adult is incompetent.  Guardianship* is markedly different from APS, including the role the adult’s capacity plays in the proceeding, the permanency of the court order, the nature of the authority granted by the court, and who may file for court protection.  These distinctions can have a significant impact on the adult and are important to consider when deciding whether or not to file a guardianship proceeding before the clerk of superior court.

The United Nations declared tomorrow as World Elder Abuse Awareness Day.  In North Carolina, Governor Cooper declared the time period spanning from Mother’s Day to Father’s Day Vulnerable Adult and […]

You did your homework, made your estate plans, and executed your last will and testament.  However, after your death, your family or friends are unable to locate your original will.  They may have only a signed or unsigned copy or nothing at all.  Perhaps the original will was destroyed in a fire or lost in a move or a family member was told that the handwritten will wasn’t worth the paper it was written on and they tore it up and threw it away (true story) or your relatives simply are unable to find your original will (tip to friends and family – don’t forget to check the family bible or the freezer).

In these situations, is all hope lost?  Will your property descend pursuant to intestate succession (i.e. to heirs according to State law) despite your careful estate planning?  Well, not quite.  It is possible to probate a lost or destroyed will in North Carolina upon certain proof to the court.   This process is not set forth in statute, but instead is derived from case law.   So where exactly does one seeking to probate a lost or destroyed will start?   Below are some key questions to consider when facing this situation.

In my last post, I wrote about the office of the clerk of superior court and the clerk’s judicial authority.  I provided a basic framework for this authority and noted that that the clerk’s non-criminal authority falls into three main categories:

1. estates and trusts,
2. civil, and
3. special proceedings.

I often get asked what I do here at the School of Government.  My work focuses on the areas of law where clerks of superior court exercise judicial authority.  This response often elicits confusion – especially for people who work outside the NC court system.  The next question is inevitably – clerks are judges?  Well, the short answer is yes.   In addition to carrying out the more traditional roles of a courthouse clerk, such as record-keeper, administrator, comptroller, and supervisor, the clerks of superior court of North Carolina also serve as judicial officials.  This is unique to North Carolina.  I am not aware of any other state where clerks carry out such a significant, if any, judicial role.  So just who is the clerk of superior court and what are the areas of the clerk’s judicial authority?  I thought I’d use this post to go over some of the highlights.