Someone once told me that to get people really interested in a meeting you need to either make it free to attend or provide food. Well, thanks to funding from the North Carolina Judicial College, we are doing both for an upcoming workshop at the School of Government. It will be held March 2-3, 2023, and will bring together diverse stakeholders from around North Carolina to begin the process of forming and developing adult protection multidisciplinary teams (MDTs). Each team may send up to seven people to participate in the workshop. The application period is now open and runs through January 13, 2023. You can learn details about the workshop and apply here.Continue Reading
Ongoing Support for Adult Protection Multidisciplinary Teams Now Available Through the School of Government Help Desk
Over the past few years, faculty and staff at the School of Government collaborated with public officials across the state to develop resources and tools related to the growth and development of adult protection multidisciplinary teams (MDTs). An adult protection MDT is a group of professionals in a geographic region who work together toward common goals related to preventing and responding to abuse, in any of its forms (physical, emotional, and sexual abuse; self-neglect and caretaker neglect; and exploitation, including financial exploitation).Continue Reading
A New Foreclosure Resource Available for Clerks of Superior Court
A power of sale foreclosure under North Carolina General Statutes Chapter 45 is intended to provide an efficient and expeditious alternative to a judicial foreclosure. In re Adams, 204 N.C. App. 318, 321 (2010). The authority of a lender to elect a power of sale foreclosure (sometimes referred to as a “non-judicial foreclosure”) typically arises based on an agreement between the borrower and the lender when a mortgage loan is made and is frequently evidenced by the power of sale provision in the deed of trust. Whereas a judicial foreclosure requires the filing of a civil action in district or superior court, a power of sale foreclosure is filed before the clerk of superior court. G.S. 45-21.16(a). A trustee, who is a fiduciary and a neutral party, files a notice of hearing to initiate the proceeding. G.S. 45-21.16(a), (c)(7)b. If after a hearing the clerk finds the existence of six factors, then the clerk enters an order authorizing the foreclosure sale. G.S. 45-21.16(d). The act of the clerk in finding or refusing to find the existence of the six factors is a judicial act. G.S. 45-21.16(d1).Continue Reading
Adult Protection MDTs: New Project Underway (and Help Needed!)
Over the last several years, the School of Government has developed new and exciting resources to support local multidisciplinary teams (MDTs) involved with protecting adults from abuse, neglect, and exploitation. An MDT is a group of professionals in a geographic region who commit to working together toward a common goal. An adult protection MDT may include, for example, social workers, law enforcement officials, prosecutors, legal services attorneys, guardians or guardians ad litem, representatives from community nonprofits, financial institutions, and area agencies on aging.Continue Reading
More on Single Protective Arrangements and Single Transactions under G.S. Chapter 35A
Recently, the School of Government offered a webinar on single protective arrangements and single transactions under G.S. 35A-1121, which was enacted into law by Session Law 2021-53 and applies to proceedings initiated on or after October 1, 2021. Meredith Smith and Timothy Heinle of the School of Government joined Catherine Wilson, an attorney with McPherson, Rocamora, Nicholson, Wilson & Hinkle, PLLC, and Matt Kraus, legal counsel with the N.C. Administrative Office of the Courts, to discuss some of the key questions and issues raised by this new law. Clerks of superior court, guardian ad litem attorneys, private attorneys, and directors, attorneys, and social workers from various departments of social services across the state participated in the webinar.
A recording of the webinar can be found here, where the presentation can be viewed for free. In the coming weeks, the video will be added to the online training library for the SOG’s Public Defense Education group, which will offer the option of purchasing access to the webinar for CLE credit.
Update: Specific Personal Jurisdiction at the U.S. Supreme Court and the N.C. Court of Appeals
Personal jurisdiction, as the name implies, refers to the authority of a court over a particular person. In order for a court to have authority over someone in a civil case, three things must exist: (1) effective service of process, (2) a statute allowing the exercise of personal jurisdiction in the case (G.S. 1-75.4, North Carolina’s long-arm statute, is the relevant statute in our state), and (3) compliance with the due process clause of the federal constitution. Continue Reading
There’s a New G.S. 35A-1121 in Town
John was adjudicated incompetent in a court proceeding three years ago. The court found that John lacked the capacity and needed the assistance of a guardian. At the time of the adjudication, John did not own any assets that required management by a guardian of the estate. Therefore, the court appointed only a guardian of the person to assist John in making decisions related to his health care, housing, and other personal matters. Last year, John was entitled to receive a stimulus payment from the government. His guardian of the person is not authorized by law to negotiate the check and use the funds on his behalf. Prior to October 1, 2021, the guardian of the person (or some other interested person) would have to go through a multi-step process to have the court appoint a guardian of the estate who could use the funds on John’s behalf. This process may have included multiple court hearings and modifications of the guardianship to appoint and then discharge a guardian of the estate. In addition to taking up time, it would create expenses for John in the form of court costs, a bond, and, in some cases, attorneys’ fees. Those expenses could ultimately be more costly than the amount that John was entitled to receive from the stimulus payment.
As of October 1st, there is an alternative path for John under the new North Carolina statute, G.S. 35A-1121. It authorizes the court to order a single protective arrangement or single transaction for the benefit of a minor or incompetent person where it is established in a proper proceeding that a basis exists for the appointment of a guardian for a minor or an incompetent person. G.S. 35A-1121(a). “Incompetent person” includes adults, emancipated minors, and minors age 17 ½ or older who are adjudicated incompetent. G.S. 35A-1202(11). This post discusses some of the key features of G.S. 35A-1121, which was enacted as part of Session Law 2021-53. Continue Reading
Welcome, Emily Turner!
The School of Government and the North Carolina Judicial College are excited to announce the addition of Emily Turner to the faculty. Emily joined the School in July 2021 and will be the lead faculty member working with district court judges, superior court judges, clerks of court, and magistrates on legal and practical aspects of conducting civil trials and contested hearings with a particular focus on the North Carolina Rules of Civil Procedure.Continue Reading
A Reminder: In Most Cases, Judges Can’t Serve as Court-Appointed Fiduciaries
The clerk of superior court, as the ex officio judge of probate in North Carolina, has original and exclusive jurisdiction over the appointment and removal of certain fiduciaries. See G.S. 7A-241. This includes the executor or administrator of a decedent’s estate (also known as the personal representative), the trustee of a trust, and a guardian of an incompetent adult or minor child’s estate. G.S. 28A-2-4(a)(2) (estate); G.S. 36C-2-203(a)(1) (trust); G.S. 35A-1203 (guardianship). When determining whether to appoint or remove these fiduciaries, the clerk must determine whether the person applying to serve in that capacity is qualified to serve. For example, a person may not serve as executor of an estate who is under the age of 18, who is a convicted felon whose rights have not been restored, or who is found to be otherwise unsuitable by the clerk. G.S. 28A-4-2(1), (3), (9).Continue Reading
The Conservatorship of Britney Spears and a Ward’s Right to Petition for Restoration of Competency
Britney Spears and the details of her conservatorship—the California equivalent of incompetency and guardianship in North Carolina—have recently been front page news, leading people to reach out to me with questions. While the case is remarkable, in part because of Ms. Spears’ fame and the massive amounts of wealth involved, the themes and central issues are familiar to those who handle these types of cases. Allegations of abuses of power, bitter family disputes, and pleas for autonomy and a return to normalcy, are not uncommon in incompetency and guardianship proceedings. Still, there are important lessons in Ms. Spears’ case for attorneys who handle guardianship work in North Carolina, including guardian ad litem attorneys in Chapter 35A proceedings.