Archive

Tag: Incompetency
  • 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 CarolinaContinue Reading

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

    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

  • Protecting Against Elder Abuse

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

    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.

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  • Some Things to Remember About Interim Guardianship

    Betty is 75 years old and lives alone.   She was recently diagnosed with dementia.  Betty’s daughter, Pam, helps look after her mother and pay her monthly bills, but has noticed a decline in Betty’s memory and ability to communicate.  Upon reviewing Betty’s monthly bank statement, Pam noticed three large payments to companies Pam did not recognize.  After some investigation, Pam discovered that the drafts were the result of a telemarketer scam.  To stop future drafts, Pam went to the bank and asked them to close Betty’s account. However, the bank refused to close the account without Betty’s authorization and told Pam that she would need to obtain guardianship of Betty to be able to close the account.  Betty refused to consent to close the account as she was afraid Pam was trying to take too much control over her life.

    Pam went online, did some research, and decided to seek interim guardianship of her mother so that she can quickly block the telemarketers from accessing her mom’s account.   What are some things Pam should keep in mind about interim guardianship before heading down to the courthouse? Continue Reading

  • You Have a Right to Appeal My Incompetency?

    ** UPDATE: On October 4, 2016, the N.C. Court of Appeals published a decision, In re Dippel, in which the court applied G.S. 35A-1115 and G.S. 1-301.2 to hold that an aggrieved party has the right to appeal from the clerk’s order dismissing an incompetency proceeding. In that case, the court determined that the petitioner was an aggrieved party and could appeal from the clerk’s order. However, the court did not provide any analysis as to how the petitioner is aggrieved by the clerk’s order dismissing the incompetency proceeding pertaining to the respondent’s competency. The opinion therefore provides limited guidance going forward as to whether a person that is entitled to notice and is not the petitioner has a right to appeal the clerk’s order dismissing the incompetency proceeding as an aggrieved party. **

     

    Bob and Mary have been married for 60 years.  They live at home together but recently Mary’s health has started to decline significantly.  Due to a concern over Mary’s ability to care for herself, a friend of Mary’s makes a report to the county department of social services (DSS).   After an investigation, DSS decides to file a petition to adjudicate Mary incompetent and an application to have a guardian appointed on her behalf.   DSS sends notice of the proceeding to both Bob and Jane, their daughter, as Mary’s next of kin.   After a hearing, the clerk of superior court finds that Mary is incompetent and appoints Jane as her general guardian.

    Bob comes to you as his attorney and states that he wants to appeal the clerk’s decision.  Does he have standing to appeal? Continue Reading

  • The Guardian of Last Resort

    After receiving a report and finding a need for protective services, the county department of social services (DSS) requests the DSS attorney file a petition with the court to adjudicate Jane Doe an incompetent adult under G.S Chapter 35A.  The matter is heard by the clerk of superior court.  DSS, as the petitioner, has the burden of proof.  Through the presentation of testimony and other evidence at the hearing, including a multidisciplinary evaluation ordered by the clerk and prepared by DSS, the clerk determines that there is clear, cogent and convincing evidence that Jane is incompetent and that her best interests will be served by appointing DSS as her guardian of the person. Continue Reading

  • LME/MCOs and MDEs

    What is an LME/MCO?

     It often feels like the mental health, developmental disabilities, and substance abuse (MH/DD/SA) fields and acronyms go hand in hand.  These acronyms can be confusing and intimidating to people who are not intimately familiar with this area of the law and practice.  This confusion is exacerbated by the fact that over the last few decades, there have been a number of changes to the delivery of public MH/DD/SA services in North Carolina.  One of the major changes was the creation of local management entities/managed care organizations (LME/MCOs).

    The purpose of the LME/MCO is to deliver MH/DD/SA services by using primarily state and federal resources appropriated to them by state government to authorize, pay for, manage, and monitor services provided by their network of private providersSee Mark F. Botts, Mental Health Services, in County and Municipal Government in North Carolina Ch. 40, at 683 (Frayda S. Bluestein ed., 2014).   As of today, there are eight LME/MCOs under contract with the NC Department of Health and Human Services (DHHS) to provide public MH/DD/SA services in North Carolina.

    What is an MDE?

    LME/MCOs overlap with the world of incompetency and adult guardianship proceedings filed before the clerk of superior court when it comes to the preparation and assembly of multidisciplinary evaluations (MDEs).  An MDE is an important tool in an incompetency proceeding under G.S. Chapter 35A that is used to assist the court in determining: Continue Reading

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