A heightened level of service is required on a respondent to an incompetency proceeding in North Carolina. G.S. 35A-1109 requires copies of the petition (SP-200) and the notice of hearing (SP-201) to be personally served on the respondent (the alleged incompetent adult). As my colleague, Ann Anderson, discussed in an earlier post, because the use of private process servers is very limited in North Carolina, personal service is completed on the respondent by the sheriff in most cases. Under the version of G.S. 35A-1109 in effect prior to May 4, 2020, service was not proper if the notice and petition were sent by FedEx, UPS, or regular mail or left with a family member at the respondent’s home or with a caregiver at a facility where the respondent resides. This heightened requirement of service on the respondent ensures that the respondent knows of the proceeding and knows the location, date, and time of the hearing. It reflects the significant impact an adjudication of incompetency has on a person’s rights to make decisions about his or her life and property. Continue Reading
Archive
Tag: Clerk of Superior Court
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Federal and State Limits on Foreclosures in North Carolina in Response to COVID-19
UPDATE #3 (May 29, 2020): For more recent updates, refer to this blog post.
UPDATE #2 (April 14, 2020): The Chief Justice of the North Carolina Supreme Court entered two orders in April of 2020.
- The April 2nd order directs that all proceedings, including proceedings before clerks of superior court, must be scheduled or rescheduled for a date no sooner than June 1 unless an exception to this directive applies. One exception includes if the proceeding will be conducted remotely; a remote proceeding may not be without the consent of each party. See April 2nd Order, Emergency Directive 1 and 3. This order extends the dates in the March 16 order discussed in the post below from April 15 to June 1.
- The April 13th order extends the date to file documents and to take certain acts to the close of business on June 1. This extends the dates in the March 19 order discussed in the post below from April 17 to June 1.
UPDATE #1 (March 30, 2020): On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Section 4022(c)(2) of the CARES Act provides that “a servicer of a Federally back mortgage loan may not initiate any judicial or non-judicial foreclosure process, move for a foreclosure judgment or order of sale, or execute a foreclosure-related eviction or foreclosure sale for not less than the 60-day period beginning on March 18, 2020.” This moratorium does not apply to a vacant or abandoned property. A “Federally backed mortgage loan” is defined in Section 4022(a)(2) as “any loan which is secured by a first or subordinate lien on residential real property (including individual units of condominiums and cooperatives) designed principally for the occupancy of from 1- to 4- families that is
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2019 Statutory Amendments to Adoption Laws
During the 2019 legislative session, various changes were made to the laws impacting adoptions in North Carolina. Last week, the North Carolina General Assembly passed a Joint Resolution (Resolution 2020-1) adjourning the long session of the 2019 Regular Session and designating the start of the short session as April 28, 2020. This post summarizes the amendments impacting adoption proceedings that were made during the long session, all of which are currently in effect. Continue Reading
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Where are We Now: The Protecting Tenants at Foreclosure Act
As I noted in a prior blog post, the US Congress restored the federal Protecting Tenants at Foreclosure Act (PTFA) without expiration on June 23, 2018. The PTFA has been in effect, expired, and restored at various points over the past decade. During one period after the PTFA expired, the NC General Assembly passed a law (S.L. 2015-178) to provide somewhat similar (but not exact, more on that below) protections for tenants of foreclosed property under state law. Most recently, the NC General Assembly took action to repeal that law in light of the permanent restoration of the PTFA. See S.L. 2019-53 and S.L. 2019-243. This blog post tracks where we’ve been and where the law currently stands related to the PTFA and power of sale foreclosures under G.S. Chapter 45 in NC.
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Civil Actions and Financial Exploitation of Older Adults: Who Brings the Action?
Financial exploitation of an older adult is a type of elder abuse. It occurs in many forms. A door-to-door home repairman defrauds an older adult out of her life savings. A caregiver gets an older adult who lacks capacity to sign a deed conveying the older adult’s property to the caregiver’s son. An adult child steals the older adult’s debit card and withdraws significant amounts of money for his own benefit. (Notably, a recent study suggests that relatives may perpetrate more financial elder abuse than strangers.)
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Eight Common Mistakes by Guardians of an Incompetent Adult’s Estate
In connection with an upcoming class on guardianship, I recently surveyed a number of clerks of superior court (judicial officials who preside over guardianship cases in NC) about common post-appointment problems among guardians. My questions focused on non-attorney individuals serving as general guardians and guardians of the estate. Here are some specific issues identified related to those guardians charged with managing an incompetent adult’s property under G.S. Chapter 35A of the NC General Statutes. For purposes of this post, “guardian” means a guardian of the estate or general guardian.
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A Frequent Flyer in Estates: The Spousal Year’s Allowance
If I had to guess, I would say the most common filing in a decedent’s estate is the year’s allowance. Last year in NC, there were 18,000 filings for a year’s allowance. There are two types of year’s allowance: one for children of the decedent and one for the spouse of the decedent. This post focuses on some basics of the spousal year’s allowance. Continue Reading
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More than the Budget: Estate and Power of Attorney Changes Circulating at the Legislature
UPDATE: During the third extra session of 2018, the General Assembly passed House Bill 1025. It was signed by Governor Cooper and became law effective December 14, 2018. It is now Session Law 2018-142. The full text is available here. Senate Bill 778 did not pass.
UPDATE #2: Although SB 778 did not pass during the 2018 legislative session, Session Law 2019-178 incorporated identical provisions of SB 778 described in Sections A, C and D below. Session Law 2019-178 went into effect on July 26, 2019.
In all of the hustle and bustle of news related to the budget, you may have missed a bill filed that impacts law regarding estates and powers of attorney. Below are just some of the changes that would occur if Senate Bill 778 becomes law. You can follow along with the progress of this bill here. [Note, House Bill 1025 includes some of the changes in SB 778 related to powers of attorney as indicated below; HB 1025 does not include the living probate, estate administration, or electronic wills changes described in this post. You can follow along with the progress of HB 1025 here.] Continue Reading
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More on Gifting Authority under the North Carolina Uniform Power of Attorney Act
I previously wrote about an agent’s authority to make gifts under the new North Carolina Uniform Power of Attorney Act (NCUPOAA) that went into effect in North Carolina on January 1, 2018. There are two additional points to keep in mind if you are an agent, a third party, or a court examining the agent’s authority granted by the principal to make gifts under a POA. Continue Reading
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Third Party Refusals to Accept a Power of Attorney under the New North Carolina Uniform Power of Attorney Act
Mary signs a power of attorney (POA) appointing her son, Frank, as her agent authorized to act on her behalf. The POA is acknowledged by a notary public and states that the agent has the authority to do all acts that the principal could do. The POA is effective immediately and durable by default under the new North Carolina Uniform Power of Attorney Act (NCPOAA) effective January 1, 2018. S.L. 2017-153 (S569) (not applicable to health care POAs or consent to health care for a minor under G.S. Chapter 32A).
Months later, Mary suffers a massive stroke and is no longer able to manage her property or business affairs because she is unable to make or communicate decisions. Frank retrieves the original POA from Mary’s safe and takes it to the bank and attempts to withdraw money from Mary’s checking account to pay some of her bills. The bank refuses to accept the POA and conduct the transaction. A friend of Frank’s notes he had a similar problem with his father’s POA. He had to ultimately seek court-ordered guardianship of his father to be able to conduct the necessary transactions on his father’s behalf because of the bank’s refusal to accept the POA. Is Frank stuck because of the bank’s refusal? Must he obtain guardianship to be able to carry out his duties under the POA on behalf of Mary?