Archive

• To Amend or Not Amend, That is the Question

  This entry was contributed by Meredith Smith on February 23, 2018 at 6:00 am and is filed under Clerks of Superior Court.

  I recently taught in a course for clerks on proceedings involving minors.   One of the sessions related to proceedings to establish facts of birth set forth in G.S. 130A-106 and G.S. 130A-107.  Both proceedings are discussed in more detail in Chapter 141 of the NC Clerk of Superior Court Procedures Manual.  The session was included on the course agenda in part to highlight the areas where clerks have jurisdiction to enter judgments and orders related to facts of birth and where clerks do not.   The two proceedings set forth in G.S. 130A before the clerk provide a mechanism for a person born in NC, whether an adult or a minor, who does not have a recorded birth certificate (G.S. 130A-106) or has unknown parentage and unknown place and date of birth (i.e. the person was abandoned at birth) (G.S. 130A-107) to obtain a judgment from the clerk establishing facts of birth.   If the clerk enters a judgment, the clerk then (i) certifies the judgment to the State Registrar, a person appointed by the Secretary of NC Department of Health and Human Services to run NC Vital Records, and (ii) sends a copy to the local register of deeds.

  These proceedings are different from a proceeding where a person has a birth certificate and wants to change information on the existing birth certificate.  Essentially, the person is seeking to obtain an amended birth certificate because information on the birth certificate is incorrect or new information is known such as the person’s parentage. People often end up in the clerk’s office seeking an order to amend a birth certificate because they have been told by Vital Records in Raleigh or a local register of deeds that a court order is needed for the State Registrar to amend the birth certificate. Continue Reading

• New Legislation Applicable to Attorneys Serving as Trustees in Chapter 45 Foreclosures

  This entry was contributed by Meredith Smith on January 12, 2018 at 7:00 am and is filed under Foreclosures.

  A trustee in a power of sale foreclosure has a fiduciary duty to both the debtor and the creditor.  In re Foreclosure of Vogler Realty, Inc., 365 N.C. 389, 397 (2012).  The trustee must be impartial in the performance of his or her duties as a disinterested third party and may not give an unfair advantage to one party to the detriment of the other.  Id.  See also In re Foreclosure by Goddard & Peterson, PLLC, 789 S.E.2d 835, 841 (2016); In re Foreclosure of Real Property for $143,600.00, 156 N.C. App. 477, 483 (2003).  This duty is recognized in G.S. Chapter 45, which requires that the notice of hearing include a statement that the trustee is a neutral party and, while holding that position, may not advocate for the creditor or the debtor in the foreclosure proceeding.  G.S. 45-21.16(c)(7)(b).

  A trustee may be held liable for breach of fiduciary duty through a civil action brought in district or superior court.  See Goddard, 789 S.E.2d at 841.  If the trustee is an attorney or represented by an attorney, then the attorney also may be subject to sanctions by the N.C. State Bar for violating the N.C. Rules of Professional Conduct.  This includes Rule 1.7(a) which prohibits the common representation of multiple clients if the representation involves a concurrent conflict of interest.  A number of ethics opinions drafted by the Ethics Committee of the State Bar provide guidance to an attorney serving as or representing a trustee in a power of sale foreclosure.  See CPR 94; CPR 166; CPR 201; CPR 220; CPR 297; CPR 305; RPC 3; RPC 64; RPC 82; RPC 90; 2004 FEO 3; 2008 FEO 11; 2011 FEO 5; 2013 FEO 5; and 2014 FEO 2.

  A new law, Session Law 2017-206, went into effect on August 30, 2017 codifies a number of these opinions. The law contains a modification and addition to G.S. Chapter 45-10 and directly applies to those situations in foreclosure proceedings where an attorney is serving as the trustee.  This post will give some preliminary thoughts on the new law as well as briefly discuss some of the related ethics opinions.  For a more detailed review and application to a particular case in your practice, I would recommend reviewing the full ethics opinions cited herein.

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• The Authority to Make Gifts under the New North Carolina Uniform Power of Attorney Act

  This entry was contributed by Meredith Smith on December 8, 2017 at 12:40 pm and is filed under Guardianship, Power of Attorney.

   

  The new North Carolina Uniform Power of Attorney Act (the Act) goes into effect on January 1, 2018.  I recently blogged about the judicial relief provisions under the Act here.   Next Tuesday, December 12th from noon to 1:15 pm, the School of Government in partnership with the N.C. Administrative Office of the Courts will be offering a free webinar on this new law.  The Honorable James Stanford, Clerk of Superior Court, Orange County, Allison Smith, NCAOC assistant legal counsel, Janice Davies, an attorney with Davies Law, PLLC, and I will be presenting. Anyone can register for the webinar here.  Note, registration closes tomorrow at noon. Continue Reading

• Multidisciplinary Evaluations in Incompetency and Adult Guardianship Proceedings: The Final Report

  This entry was contributed by Meredith Smith on November 10, 2017 at 3:17 pm and is filed under Guardianship.

  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

• Judicial Relief under the New GS Chapter 32C, the North Carolina Uniform Power of Attorney Act

  This entry was contributed by Meredith Smith on September 1, 2017 at 5:29 pm and is filed under Clerks of Superior Court, Estates, Guardianship, Power of Attorney.

  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.

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• The Final Installment: Protecting Against Elder Abuse, Part Three

  This entry was contributed by Meredith Smith on August 4, 2017 at 6:00 am and is filed under Guardianship.

  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

• More on Protecting Against Elder Abuse

  This entry was contributed by Meredith Smith on June 23, 2017 at 2:30 pm and is filed under Clerks of Superior Court, Guardianship.

  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.

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• Protecting Against Elder Abuse

  This entry was contributed by Meredith Smith on June 14, 2017 at 6:00 am and is filed under Clerks of Superior Court, Guardianship.

  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.”

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• Where Oh Where Could My Lost Will Be?

  This entry was contributed by Meredith Smith on May 24, 2017 at 7:42 pm and is filed under Clerks of Superior Court, Estates.

  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

• The Little Engine that Could: Article 27A, G.S. Chapter 1

  This entry was contributed by Meredith Smith on April 21, 2017 at 4:22 pm and is filed under Clerks of Superior Court, Judicial Authority.

  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:

  1. estates and trusts,
  2. civil, and
  3. special proceedings.

  Continue Reading