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.
-
-
A/N/D Reporting: Rights, Protections, and Prosecutor Review
Like every other state, North Carolina has a mandated reporting law for child abuse and neglect. North Carolina’s law requires any person or institution with cause to suspect a child is abused, neglected, or dependent by a parent, guardian, custodian, or caretaker to make a report to the county child welfare department (in most counties, DSS) where the child resides or is found. GS 7B-301. What is in a report? Are there protections for the reporter? What are the rights of the reporter? If DSS decides not to initiate a court action, can the reporter challenge that decision? Continue Reading
-
More on Law Enforcement Involvement in Custody Cases
More on Law Enforcement Involvement in Custody Cases
In my earlier blog post, Ordering Law Enforcement Officers to Enforce a Child Custody Order, Jan. 15, 2016, I discussed North Carolina case law indicating that a trial court’s authority to order law enforcement to assist in the enforcement of a child custody order is very limited. The General Assembly recently enacted legislation to clarify that the warrant provision in GS 50A-311 is a tool available to trial court judges seeking to enforce North Carolina custody orders as well as orders issued in other states and countries.
Continue Reading -
Protecting Against Elder Abuse
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 Elder Abuse Awareness Month. The Governor’s proclamation recognizes NC’s “vulnerable and older adults of all social, economic, racial, and ethnic backgrounds may be targets of abuse, neglect, or exploitation which can occur in families, long-term care settings, and communities.”
Continue Reading -
Cohabitation is a Defense to Alimony
N.C. Gen. Stat. 50-16.9(b) provides that “if a dependent spouse who is receiving postseparation support or alimony from a supporting spouse … engages in cohabitation, the postseparation support or alimony shall terminate.” In Setzler v. Setzler, 781 SE2d 64 (NC App., 2015), the court stated that “the primary intent in making cohabitation grounds for termination of alimony was to evaluate the economic impact of a relationship on a dependent spouse and, consequently, avoid bad faith receipts of alimony;” bad faith meaning a dependent spouse avoiding remarriage for the sole purpose of continuing to receive alimony. So if the relationship is such that one would expect the parties to be married, the assumption is the only reason they are not married is the desire to avoid the termination of alimony. For more on defining cohabitation, see my earlier post Alimony: Cohabitation is All About Money After All.
Cohabitation clearly terminates an award of support. What if the dependent spouse is cohabitating or has cohabitated at the time she or he is asking the court for an award of postseparation support or alimony? Is cohabitation a defense to the establishment of a support obligation? Does it matter whether the dependent spouse still is cohabitating at the time of the support request?
-
In the Matter of T.K.: Does a Student’s Use of Profanity in the Hallway Constitute Disorderly Conduct at School?
Update: On June 5, 2017, the NC Supreme Court allowed the state’s motion for a temporary stay of the Court of Appeals’ opinion in T.K., which indicates that further appellate review is possible. Pursuant to NC Rules of Appellate Procedure 15(b) and 32(b), the state has until June 20, 2017, to file a petition for discretionary review of the Court of Appeals’ opinion.
Continue Reading -
Marco Polo and Mobile Home Spaces
When I was a child, sharing the backseat of a station wagon with my brother and sister on long summer road trips, we used to play the First Thing You Think Of word association game. You know the one, where your sister says Cold and you say Hot, as fast as you can. Salt and pepper. Marco? Polo! The only thing that’s really changed now that I’m grown up are the words. Mobile home space? If you thought 60 days, this blog is for you.
Continue Reading -
Falls at the hospital: medical malpractice or ordinary negligence? Recent Court of Appeals opinions
Why it matters: Rule 9(j) very briefly.
Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation that the medical care and records have been reviewed by an expert who meets certain qualifications and who is willing to testify that there was a breach of the standard of care. If a plaintiff fails to include the Rule 9(j) language before the underlying statute of limitations expires, the complaint “shall be dismissed.” This special pleading requirement does not apply to other types of malpractice or to ordinary negligence actions. Rule 9(j) was enacted as an attempt to curb frivolous medical malpractice claims. But it has had the side effect of generating more than its fair share of appellate wrangling. Since it was enacted in 1995, well over 100 published opinions have been issued interpreting its undefined provisions, reconciling it with other procedural rules, and determining when it does and does not apply. [See an overview here.] One group of those opinions has examined whether the complaint actually alleged a “medical malpractice action” in the first place, or whether it merely stated a claim for ordinary negligence. If a claim is ordinary negligence, Rule 9(j) does not apply, even if the event occurred in a medical setting and the defendant was a “health care provider.”
Falling in a medical facility
Patient falls–either from standing or lying positions—have featured somewhat prominently in these cases. Where the court has concluded that the fall involved a provider’s clinical assessment or judgment, the claims have been classified as medical malpractice. See Sturgill v. Ashe Memorial Hospital, Inc., 186 N.C. App. 624 (2007) (failure to restrain fall-risk patient where restraints required medical order); Deal v. Frye Reg. Med. Ctr, 202 N.C. App. 584 (2010) (unpub’d) (failure to conduct requisite fall risk screening); see also Littlepaige v. US, 528 Fed Appx 289 (4th Cir. 2013) (unpub’d) (failure to secure patient who had been placed on “falls precaution”). Continue Reading
-
Where Oh Where Could My Lost Will Be?
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. Continue Reading
-
What’s Social Media Got to Do with It?
Every year when I convene North Carolina criminal defense investigators to plan their sessions for the annual spring public defender conference, I look forward to hearing about new ideas for sessions to include at the conference. They repeatedly request social media topics. The light bulb did not come on for me until I attended the 2017 National Defender Investigator Conference in April. After three full days of plenary and breakout sessions, I realized that social media and the internet are essential training topics.
Continue Reading