Articles in the Guardianship category - Page 3 of 5

I previously published on this blog Guardian ad Litem Attorney Challenges in the Era of COVID-19, which explored the complications the current pandemic has posed for Guardians ad Litem (“GALs”) in Chapter 35A incompetency and guardianship proceedings. Given these challenges and other developments, GALs may see an increase in the number of Adult Protective Service (“APS”) petitions being filed under Chapter 108A. This could be good news for GALs and their clients in some situations; however, GALs also need to be aware of the potential risks that could go along with a rise in APS petitions.

READ POST "Will We See More APS Petitions During COVID-19? What GALs Need to Know (June 17, 2020)"

A heightened level of service is required on a respondent to an incompetency proceeding in North Carolina.  G.S. 35A-1109 requires copies of the petition (SP-200) and the notice of hearing (SP-201) to be personally served on the respondent (the alleged incompetent adult).  As my colleague, Ann Anderson, discussed in an earlier post, because the use of private process servers is very limited in North Carolina, personal service is completed on the respondent by the sheriff in most cases.  Under the version of G.S. 35A-1109 in effect prior to May 4, 2020, service was not proper if the notice and petition were sent by FedEx, UPS, or regular mail or left with a family member at the respondent’s home or with a caregiver at a facility where the respondent resides. This heightened requirement of service on the respondent ensures that the respondent knows of the proceeding and knows the location, date, and time of the hearing. It reflects the significant impact an adjudication of incompetency has on a person’s rights to make decisions about his or her life and property.

Financial exploitation of an older adult is a type of elder abuse.  It occurs in many forms.  A door-to-door home repairman defrauds an older adult out of her life savings.  […]

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.

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 […]

I am excited to announce our new listserv for appointed guardian ad litem (GAL) attorneys in G.S. Chapter 35A adult guardianship cases. This new listserv administered by the School of Government is available for guardian ad litem (GAL) attorneys appointed in G.S. Chapter 35A adult guardianship proceedings across North Carolina.

I am planning two conferences for civil defenders that will be held at the School of Government (SOG). The Guardianship Proceedings for Appointed Counsel conference is scheduled for January 24, 2019 and the Civil Commitment Conference is the following day on January 25, 2019. Currently they are held bi-annually in odd years.

READ POST "Upcoming Trainings for Civil Defenders (October 24, 2018)"

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.

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. 

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.