Archive

• More on Single Protective Arrangements and Single Transactions under G.S. Chapter 35A

  This entry was contributed by Timothy Heinle, Meredith Smith on April 20, 2022 at 1:21 pm and is filed under Clerks of Superior Court, Guardianship.

   

  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.

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• Update: Specific Personal Jurisdiction at the U.S. Supreme Court and the N.C. Court of Appeals

  This entry was contributed by Emily Turner on November 18, 2021 at 2:59 pm and is filed under Civil Practice, Civil Procedure-General.

  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

  This entry was contributed by Meredith Smith on October 5, 2021 at 4:00 pm and is filed under Guardianship.

   

  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!

  This entry was contributed by Meredith Smith on August 23, 2021 at 7:30 am and is filed under Civil Practice.

  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.

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• A Reminder: In Most Cases, Judges Can’t Serve as Court-Appointed Fiduciaries

  This entry was contributed by Meredith Smith on August 20, 2021 at 1:00 am and is filed under Clerks of Superior Court.

  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).

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• The Conservatorship of Britney Spears and a Ward’s Right to Petition for Restoration of Competency

  This entry was contributed by Timothy Heinle on July 7, 2021 at 12:30 pm and is filed under Guardianship.

   

  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.

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• More on the Protecting Tenants at Foreclosure Act

  This entry was contributed by Meredith Smith on September 18, 2020 at 2:56 pm and is filed under Foreclosures.

  * Note, this post focuses solely on the application of the federal Protecting Tenants at Foreclosure Act to Chapter 45 power of sale foreclosure proceedings.  Many foreclosures and evictions of occupants from properties acquired through foreclosure, including pursuant to an order for possession under G.S. 45-21.29(k) (the subject of this post), remain subject to a federal moratorium due to the pandemic.  This moratorium was recently extended through December 31, 2020.  To read more about current federal and state limits imposed on foreclosure proceedings due to the pandemic, click here.

  A borrower stops making his home mortgage payments.  A lender files a power of sale foreclosure pursuant to G.S. Chapter 45 to foreclose the lien of the deed of trust.   After title to the property is transferred to a new owner out of the foreclosure, an occupant remains on the property.  The new owner of the property, also known as the successor in interest, files a petition with the clerk of superior court under G.S. 45-21.29(k) for an order for possession.  The petition and other evidence provided by the petitioner meet requirements of subsection (k) but the petition also states the occupant is a bona fide tenant.* Continue Reading

• It’s Time for a New SOG Cohort of Elder Abuse Multidisciplinary Teams

  This entry was contributed by Meredith Smith, Aimee Wall on August 28, 2020 at 8:00 am and is filed under Guardianship.

  How does elder abuse show up in your community?

  How has the COVID-19 pandemic affected how that abuse happens or how local professionals respond to it?

  A new opportunity to address these concerns is opening up September 9th.The intent of the North Carolina Elder Protection Network is to connect, inform, and support our public professionals who are working together to find ways to prevent and respond to abuse of older adults.

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• Quick Reference Guide to Orders from the Chief Justice and the North Carolina Supreme Court Related to COVID-19

  This entry was contributed by Meredith Smith on June 9, 2020 at 9:05 am and is filed under Clerks of Superior Court, Uncategorized.

   

  *This post has been updated multiple times.  For the most recent version of the chart, scroll to the bottom of the post.

  Since the start of the pandemic, the Chief Justice of the North Carolina Supreme Court and the North Carolina Supreme Court have issued a number of directives impacting the court system.  Instead of doing a heavy substantive post today, I thought I would share a quick reference chart I’ve been using to keep track of these directives, their effect based on the most recent order issued, the dates of the order containing each directive, and their expiration date. Continue Reading

• Expiration and Extension of Federal and State Limits on Foreclosures in North Carolina

  This entry was contributed by Meredith Smith on May 29, 2020 at 12:04 pm and is filed under Foreclosures.

  UPDATE (June 28, 2021):  The federal moratorium on foreclosures and evictions from properties subject to foreclosure is extended for many loans.

  • The Federal Housing Finance Agency (FHFA) announced that Fannie Mae and Freddie Mac will extend the moratorium on single-family foreclosures and real estate owned evictions through July 31, 2021.
    
  • The U.S. Department of Housing and Urban Development through the Federal Housing Administration announced an extension of its foreclosure and eviction moratorium through July 31, 2021 related to FHA insured loans.
    
  • The Department of Veterans Affairs announced an extension of the foreclosure moratorium on VA-guaranteed loans through July 31, 2021.
    
  • The U.S. Department of Agriculture announced an extension of the foreclosure and eviction moratorium for all USDA Single Family Housing direct and guaranteed loans through July 31, 2021.

  A press release issued by the White House on June 24, 2021 indicates that this will be the final extension of the foreclosure moratorium.

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