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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You May Not Need that Guardian of the Estate After All: Other Methods of Distributing Property to Minors
A guardian of the estate for any unemancipated minor may be appointed under G.S. Chapter 35A to receive and administer property on the minor’s behalf. G.S. 35A-1221; G.S. 35A-1251; G.S. 35A-1202(12) (requiring also that the minor must not be married). This is because such minors are legally incompetent to transact business or give consent for most purposes. G.S. 35A-1201(a)(6); see G.S. 7B-3507 (rights of emancipated minors). Unemancipated minors therefore need responsible, accountable adults to handle property or benefits to which they are entitled. Id.
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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?
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The Authority to Make Gifts under the New North Carolina Uniform Power of Attorney Act
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
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Multidisciplinary Evaluations in Incompetency and Adult Guardianship Proceedings: The Final Report
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
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Show Me the Money: Verification of Adequate Resources Required when Ordering Custody or Guardianship to a Non-Parent in an A/N/D Action
If you’re a sports fan like me, you probably like sports movies. And if you like sports movies, you know the famous line from Jerry Maguire, “show me the money!” That line has some application to abuse, neglect, or dependency cases – specifically when a court is going to order custody or guardianship of a child who has been adjudicated abused, neglected, or dependent to a person who is not the child’s parent. The Juvenile Code requires that the court first verify that the proposed custodian or guardian “will have adequate resources to care appropriately for the juvenile.” G.S. 7B-903(a)(4), -906.1(j), -600(c).* Continue Reading
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Judicial Relief under the New GS Chapter 32C, the North Carolina Uniform Power of Attorney Act
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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Preparing for the Effective Date: UAGPPJA Resources
Tomorrow, December 1, 2016, G.S. Chapter 35B goes into effect in North Carolina. The law incorporates provisions of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA). As I noted in this earlier post, it applies to all new incompetency and adult guardianship proceedings filed on or after December 1st and requires the court to ensure jurisdiction is proper under Chapter 35B before proceeding with the case. Keep in mind that if a case is already pending as of December 1st, the court is not required to apply the G.S. Chapter 35B analysis related to jurisdiction for initial filings, even if the hearing takes place after December 1st.
UAGPPJA, as adopted in G.S. Chapter 35B, also provides a new mechanism for transferring existing adult guardianship cases to and from North Carolina and for registering out of state guardianship orders in North Carolina. The transfer and registration provisions apply as of December 1, 2016 to all cases in NC, regardless of whether they were filed before, on, or after that date.
The text of G.S. Chapter 35B is now available on the N.C. General Assembly’s website. Note the statutes were renumbered when they were codified. Therefore, the statutory references in the session law, S.L. 2016-72, are no longer correct. In addition to the primary law, I wanted to use this post to identify some other resources now available to assist with the implementation of UAGPPJA in N.C. Continue Reading