Articles in the Guardianship category - Page 4 of 5

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 […]

A county director of social services may be appointed to serve as guardian for an adult who has been adjudicated incompetent by a clerk of superior court. Making decisions about […]

More than two months have passed since the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) went into effect in North Carolina. I’ve blogged about this topic a couple of times before.  If you are just tuning in to this new law, you can read more about UAGPPJA here and here. I’d like to use the post today to go through some questions I’ve received since the December 1, 2016 effective date.  The questions are divided up according to the three main areas of the law: initial filings, transfer, and registration.  The stories you are about to read are true; names have been changed to protect the innocent.*

Tomorrow, December 1, 2016, G.S. Chapter 35B goes into effect in North Carolina.  The law incorporates provisions of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). As I noted in this earlier post, it applies to all new incompetency and adult guardianship proceedings filed on or after December 1st and requires the court to ensure jurisdiction is proper under Chapter 35B before proceeding with the case.  Keep in mind that if a case is already pending as of December 1st, the court is not required to apply the G.S. Chapter 35B analysis related to jurisdiction for initial filings, even if the hearing takes place after December 1st.

UAGPPJA, as adopted in G.S. Chapter 35B, also provides a new mechanism for transferring existing adult guardianship cases to and from North Carolina and for registering out of state guardianship orders in North Carolina.  The transfer and registration provisions apply as of December 1, 2016 to all cases in NC, regardless of whether they were filed before, on, or after that date.

The text of G.S. Chapter 35B is now available on the N.C. General Assembly’s website.  Note the statutes were renumbered when they were codified.  Therefore, the statutory references in the session law, S.L. 2016-72, are no longer correct.  In addition to the primary law, I wanted to use this post to identify some other resources now available to assist with the implementation of UAGPPJA in N.C.

I’ve been spending a lot of my time recently focused on the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA; pronounced, “you-ah-gap-jah”).  UAGPPJA is a uniform law enacted by the NC General Assembly during this past legislative session as S.L. 2016-72.   I previously discussed an earlier version of the bill in a blog post available here.  The law creates a new G.S. Chapter 35B and applies to incompetency and adult guardianship proceedings under G.S. Chapter 35A.  It does not apply to minor guardianships under Article 6 of G.S. Chapter 35A.

The county department of social services (DSS) receives a report that a 65-year old woman, Mary, was injured by a family member who repeatedly hit her during a dispute that took place at Mary’s home.   Mary lives with her adult daughter, Patricia, and son-in-law, Frank.  The report includes a statement that Mary has been recently diagnosed with dementia and has not left the house in more than a month.  After finding the necessary allegations to screen the report in as an adult protective services (APS) report, the case is assigned to an APS caseworker who commences an evaluation to investigate the report further and determine whether Mary is a disabled adult subject to abuse, neglect, or exploitation and in need of protective services.  See G.S. 108A-103.

When the caseworker goes to visit Mary as part of the evaluation, Frank refuses to allow her in the home.  The caseworker returns multiple times and each time is denied entry and access to Mary.  The caseworker determines that it is not possible to complete the evaluation without meeting with Mary.  Is there anything that she can do to gain access to the home and thus to Mary?

Betty is 75 years old and lives alone.   She was recently diagnosed with dementia.  Betty’s daughter, Pam, helps look after her mother and pay her monthly bills, but has noticed a decline in Betty’s memory and ability to communicate.  Upon reviewing Betty’s monthly bank statement, Pam noticed three large payments to companies Pam did not recognize.  After some investigation, Pam discovered that the drafts were the result of a telemarketer scam.  To stop future drafts, Pam went to the bank and asked them to close Betty’s account. However, the bank refused to close the account without Betty’s authorization and told Pam that she would need to obtain guardianship of Betty to be able to close the account.  Betty refused to consent to close the account as she was afraid Pam was trying to take too much control over her life.

Pam went online, did some research, and decided to seek interim guardianship of her mother so that she can quickly block the telemarketers from accessing her mom’s account.   What are some things Pam should keep in mind about interim guardianship before heading down to the courthouse?

** UPDATE: On October 4, 2016, the N.C. Court of Appeals published a decision, In re Dippel, in which the court applied G.S. 35A-1115 and G.S. 1-301.2 to hold that an aggrieved party has the right to appeal from the clerk’s order dismissing an incompetency proceeding. In that case, the court determined that the petitioner was an aggrieved party and could appeal from the clerk’s order. However, the court did not provide any analysis as to how the petitioner is aggrieved by the clerk’s order dismissing the incompetency proceeding pertaining to the respondent’s competency. The opinion therefore provides limited guidance going forward as to whether a person that is entitled to notice and is not the petitioner has a right to appeal the clerk’s order dismissing the incompetency proceeding as an aggrieved party. **

Bob and Mary have been married for 60 years.  They live at home together but recently Mary’s health has started to decline significantly.  Due to a concern over Mary’s ability to care for herself, a friend of Mary’s makes a report to the county department of social services (DSS).   After an investigation, DSS decides to file a petition to adjudicate Mary incompetent and an application to have a guardian appointed on her behalf.   DSS sends notice of the proceeding to both Bob and Jane, their daughter, as Mary’s next of kin.   After a hearing, the clerk of superior court finds that Mary is incompetent and appoints Jane as her general guardian.

Bob comes to you as his attorney and states that he wants to appeal the clerk’s decision.  Does he have standing to appeal?

After receiving a report and finding a need for protective services, the county department of social services (DSS) requests the DSS attorney file a petition with the court to adjudicate Jane Doe an incompetent adult under G.S Chapter 35A.  The matter is heard by the clerk of superior court.  DSS, as the petitioner, has the burden of proof.  Through the presentation of testimony and other evidence at the hearing, including a multidisciplinary evaluation ordered by the clerk and prepared by DSS, the clerk determines that there is clear, cogent and convincing evidence that Jane is incompetent and that her best interests will be served by appointing DSS as her guardian of the person.