Archive

Tag: guardianship
  • 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

  • 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).

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  • 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.

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  • Incompetent Wards and the Sex Offender Registry

    I received an interesting question recently when I taught about the intersection of criminal defense and Chapter 35A incompetency. Suppose a person is adjudicated incompetent in a Chapter 35A proceeding and a guardian is appointed. Suppose that same person had been convicted of a crime requiring registration as a sex offender and compliance with the other obligations of Chapter 14, Article 27A. The person is required to register changes to their address (including providing notice to law enforcement of an intention to move out-of-state), to their academic and employment status, and to notify the State of changes to their name or online identifiers, including e-mail addresses. G.S. 14-208.7; G.S. 14-208.9. What effect does declaration of incompetency have on these registration requirements? Who is responsible for ensuring that the incompetent adult complies with these registration obligations—the adult or their guardian?

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  • Temporary Changes to Service on the Respondent in Incompetency Proceedings

    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

  • 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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  • Using DSS Custody in Delinquency Cases – Key Takeaways

    My colleague, Sara DePasquale, and I were excited to release a new Juvenile Law Bulletin two weeks ago—Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work? We were also exhausted. While the laws that allow for courts to order juveniles into DSS custody in a delinquency proceeding are short, their implications are broad and complex. Sara’s blog announcing the bulletin, Extra! Extra! Read All About It! New Juvenile Law Bulletin – Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work?, provides some suggestions about reading the bulletin in bite-sized chunks. Now that readers have had a chance to do that, let’s focus on a few of the key points for delinquency practitioners.

    • the proceeding remains a delinquency proceeding although the juvenile is in the custody of DSS;
    • the only attorney who will represent a juvenile placed in DSS custody through a delinquency proceeding is the juvenile’s counsel in the delinquency matter;
    • termination of probation does not automatically terminate DSS custody; and
    • implementation of the Juvenile Justice Reinvestment Act (a.k.a. “raise the age”) could result in a new challenge for DSS placements.

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  • Extra! Extra! Read All About It! New Juvenile Law Bulletin – Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work?

    Did you know that in a juvenile delinquency court case the juvenile may be placed in the custody of a county’s child welfare department (usually a department of social services (DSS))? A DSS placement through a delinquency action may happen in one of three ways:

    With each of these types of delinquency orders, there is not an allegation, substantiation, or adjudication that the juvenile is abused, neglected, or dependent (see my last blog post, here, discussing  delinquency as it relates to abuse, neglect, or dependency). Instead, the juvenile’s court involvement is a result of his or her alleged acts of delinquency rather than circumstances created by a parent, guardian, custodian, or caretaker. Each of these three custody orders is a type of delinquency order and not an order related to a juvenile’s abuse, neglect, or dependency. However, at times, as a result of the order placing the juvenile in DSS custody, pieces of abuse, neglect, and dependency law apply in the delinquency case.

    The legal implications of placing a juvenile into DSS custody and resulting foster care as part of a delinquency mat­ter are complex – so complex, that a blog post will not do. Instead, my colleague, Jacquelyn (Jacqui) Greene and I wrote a new extensive juvenile law bulletin discussing these orders and the issues that arise with each type of order. You can access the bulletin, Delinquency and DSS Custody without Abuse, Neglect, or Dependency: How Does that Work? here. Continue Reading

  • Apply Now! Elder Abuse Workshop at the School of Government

     

    Yesterday, the application period opened for a free workshop we will be hosting September 26-27, 2019 at the School of Government in Chapel Hill.* The purpose of the workshop is to bring together stakeholders from around North Carolina to create and grow multidisciplinary teams (MDTs) to address elder abuse in their respective communities.  You can learn details about the workshop and apply here.  Only teams will be accepted to attend the workshop.  This post provides additional information to consider if you and others in your community are interested in forming a team and submitting an application. Continue Reading

  • 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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