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
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.
Faith and Julie have been neighbors and friends for over twenty years. They are both 75 years old and take daily walks together. Julie was recently diagnosed with dementia. Her daughter, Abby, lives a few hours away and is her general guardian, but rarely visits her mother. Abby hired an in-home aide to assist Julie around the house. When Faith tries to visit Julie during the day, the aide tells Faith that Julie is no longer up for visits from her or anyone else. Faith noticed the aide often leaves for hours at a time during the day and locks Julie in the house while she is gone. A mutual friend told Faith she recently saw Julie and the aide at an estate lawyer’s office and Julie mentioned she was changing her will. Faith grows worried about Julie and calls Abby to express her concerns. Abby is overwhelmed with stress in her own life and states that she trusts the aide, but will check in on her mother soon. Faith doesn’t see Abby visit or any changes to the aide or the aide’s behavior.
In my previous posts, available here and here, I described elder abuse generally and how adult protective services (APS) through the county departments of social services and guardianship proceedings before the clerk of superior court can be tools to protect against elder abuse, neglect, and exploitation (hereinafter, referred to as “abuse”). However, just because someone has a guardian, it does not mean the risks of such abuse are eliminated. In fact, guardians, such as Abby, often create circumstances for such abuse by leaving the adult in vulnerable positions and failing to monitor the adult’s care. In addition, guardians may be the source of such abuse by taking advantage of and exploiting the authority they are given. One recent report commissioned by the U.S. Senate Special Committee on Aging examined such abuse by guardians after growing concern of abusive practices by guardians. The study concluded the extent of such abuse is unknown nationally due to limited data but there is some evidence that financial exploitation by a guardian is one of the most common types of elder abuse, which frequently includes the guardian overcharging for services that were either not necessary or never performed or misusing the adult’s money by incurring excessive dining and vehicle expenses. See Elder Abuse Report, pg. 11 and 14.
The risk of the abuse of an adult under guardianship may be mitigated by (i) court screening of potential guardians through criminal and financial background checks and guardian training or certification requirements, and (ii) court oversight after a guardian is appointed through the filing with the court of status reports, which are reports on the care, comfort, and maintenance of the adult, and accountings, which are reports on the financial affairs of the adult. Even with effective screening and oversight, abuse may still occur when someone has a guardian.
So, what steps may someone, like Faith, who is concerned about abuse of someone under guardianship either by the guardian or a third-party take to protect the adult? Continue Reading
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 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
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
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:
- estates and trusts,
- civil, and
- 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. Continue Reading
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. Continue Reading
A. The Statute
When a person dies without a will, the person dies intestate and the person’s property is distributed in accordance with the Intestate Succession Act (the “Act”) found in Chapter 29 of the North Carolina General Statutes. The Act states that if a person dies intestate without a spouse or lineal descendants (meaning children, grandchildren, etc.), the person’s parents are entitled to take equal shares of the person’s estate if both parents are alive. G.S. 29-2(4); G.S. 29-15(3). If only one parent is alive, then that surviving parent takes the entirety of the intestate estate. G.S. 29-15(3).
The parental right to inherit via intestate succession from a child is not an unqualified right. Under G.S. 31A-2, a parent who willfully abandons the care and maintenance of his or her child shall lose all rights to intestate succession in any part of the child’s estate. This bar includes any recovery from a wrongful death action because, pursuant to G.S. 28A-18-2(a), wrongful death proceeds are disposed of as provided in the Act, even though such assets pass outside of the estate.
Although a parent may have willfully abandoned a child, the parent may still inherit from a child if the parent is able to show an exception to the bar applies. The two exceptions listed in the statute are if the abandoning parent:
- Resumed care and maintenance at least one year prior to the death of the child and continued the same until the child’s death; or
- Was deprived of the custody of his or her child under an order of a court of competent jurisdiction and the parent has substantially complied with all orders of the court requiring contribution to the support of the child. G.S. 31A-2(1) and (2).
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? Continue Reading
** 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? Continue Reading
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. Continue Reading
In an opinion published on January 5, 2016, a three-judge panel of the NC Court of Appeals addressed a frequently contested issue in power of sale foreclosure proceedings: whether the party seeking to foreclose by power of sale provided sufficient evidence to establish it was the holder of the note under G.S. 45-21.16(d)(i). See In re Foreclosure of Kenley, ____ N.C. App. ____ (Jan. 5, 2016). Continue Reading
What is an LME/MCO?
It often feels like the mental health, developmental disabilities, and substance abuse (MH/DD/SA) fields and acronyms go hand in hand. These acronyms can be confusing and intimidating to people who are not intimately familiar with this area of the law and practice. This confusion is exacerbated by the fact that over the last few decades, there have been a number of changes to the delivery of public MH/DD/SA services in North Carolina. One of the major changes was the creation of local management entities/managed care organizations (LME/MCOs).
The purpose of the LME/MCO is to deliver MH/DD/SA services by using primarily state and federal resources appropriated to them by state government to authorize, pay for, manage, and monitor services provided by their network of private providers. See Mark F. Botts, Mental Health Services, in County and Municipal Government in North Carolina Ch. 40, at 683 (Frayda S. Bluestein ed., 2014). As of today, there are eight LME/MCOs under contract with the NC Department of Health and Human Services (DHHS) to provide public MH/DD/SA services in North Carolina.
What is an MDE?
LME/MCOs overlap with the world of incompetency and adult guardianship proceedings filed before the clerk of superior court when it comes to the preparation and assembly of multidisciplinary evaluations (MDEs). An MDE is an important tool in an incompetency proceeding under G.S. Chapter 35A that is used to assist the court in determining: Continue Reading
Way back when in 2011, there was a significant legislative overhaul of estate proceedings in North Carolina. See G.S. 28A-2-4 (defining estate proceedings). With those changes, the primary statute governing the procedures for an estate proceeding is now G.S. 28A-2-6. Subsection (e) of G.S. 28A-2-6 addresses the application of the NC Rules of Civil Procedure to estate proceedings. Each rule of civil procedure generally falls into one of three categories when it comes to estate proceedings before the clerk of superior court:
- It applies (unless the clerk directs that it does not apply);
- It does not apply (unless the clerk directs that it does apply); or
- It is Rule 17.
The protections afforded to tenants in foreclosure proceedings under the federal Protecting Tenants at Foreclosure Act (PTFA) of 2009 ended on December 31, 2014. The act expired and Congress did not extend it. Effective October 1, 2015, the North Carolina General Assembly enacted a law that partially fills the hole left by the expiration of the PTFA. This post covers some of the key changes and protections resulting from a new section G.S. 45-21.33A created by S.L. 2015-178 (H 174). Continue Reading
Vern and Jane are divorced and have one son, Teddy, who has severe intellectual and developmental disabilities. When Teddy turns 17 ½ years old, Vern files a petition with the clerk of superior court of Unreal County to have Teddy adjudicated incompetent and an application to be appointed as Teddy’s guardian. G.S. 35A-1105; G.S. 35A-1210. After a hearing, the clerk finds clear, cogent, and convincing evidence of Teddy’s incapacity and enters an order adjudicating Teddy incompetent. G.S. 35A-1112(d). The clerk appoints Vern as Teddy’s guardian of the person and Jane, who also filed an application to be Teddy’s guardian, as his guardian of the estate.Continue Reading
We’ve now posted a handful of times about the Servicemembers Civil Relief Act (SCRA) on this blog. In particular, we’ve posted on the SCRA’s application to non-judicial foreclosures, juvenile proceedings, and family law cases. At the risk of being told that the blog should be renamed “The SCRA and Other Civil Stuff,” I’m going to add another SCRA post to the list. In my defense, over the course of the past few months I’ve received a number of questions regarding the applicability of the SCRA to proceedings before the clerk of superior court. In particular, I’ve been asked whether the SCRA applies to incompetency proceedings filed under G.S. Chapter 35A for the purpose of obtaining a guardian for an alleged incompetent adult. Here’s how I’ve answered the questions I’ve received:Continue Reading
*This post was updated on July 27, 2015 to incorporate a reference to GS 28A-19-12.
Yesterday, the NC Court of Appeals published an impactful case in the area of estates – In re Taylor, ___ NC App ___ (July 7, 2015). It provides clarity in areas where there has been a varied set of practices from county to county. What did the court say? Continue Reading
Cheryl recently posted about the Servicemembers’ Civil Relief Act (SCRA). The SCRA is intended to provide protections for servicemembers on active duty and returning from active duty by suspending certain legal processes against them. The SCRA applies to all non-criminal proceedings, including areas subject to the clerk’s authority such as adoptions, legitimations, foreclosures, and default judgments, among others. Cheryl’s post identifies and walks through four steps judges and clerks should follow in applying the SCRA to most non-criminal proceedings. However, with regard to non-judicial power of sale foreclosures, a different analysis applies. These foreclosures are filed before the clerk of superior court under Chapter 45 of the General Statutes.