Archive

Tag: Incompetency
  • 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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  • The Initial Guide in a New Series: The First Seven Days

    The UNC School of Government’s Public Defense Education group is excited to announce a new series of practice guides, The First Seven Days, by Timothy Heinle, Civil Defender Educator. The guides offer practical tips and strategies for respondent’s attorneys in various civil proceedings to use during the first several days of representation. The ideas suggested in the guides are designed to help busy attorneys hit the ground running in ways that reduce stress for the attorney and improve representation for the client.

    The first entry in the series is The First Seven Days as a Guardian ad Litem in an Incompetency Proceeding. It includes ideas on creating files, client outreach, investigation tools, report writing, and more. Guardian ad litem attorneys in Chapter 35A proceedings can obtain the guide in three ways. Continue Reading

  • 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

  • Guardian ad Litem Attorney Challenges in the Era of COVID-19

    The goal of this post is to identify key challenges facing Chapter 35A Guardian ad Litem (GAL) Attorneys in the COVID-19 era and to propose strategies for addressing those challenges.

    GAL Access to Respondents

    A fundamental responsibility of GALs in incompetency proceedings is that they “shall personally visit the respondent as soon as possible” after being appointed. G.S. 35A-1107(b). With many facilities restricting visitors currently, GALs are finding it difficult, if not impossible, to meet respondents in person. GALs attempting to visit a respondent should bring with them their appointment paperwork and a copy of G.S. 35A-1107 to show the facility. If a GAL feels it is vital to meet the respondent in person, but is denied access by a facility, consider filing a motion to address access issues with the clerk and subpoena the facility staff to the hearing.

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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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  • 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

  • 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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