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It’s something that most parents do not want to think about - “What happens to my child if I am no longer able to take care of them?”  This article stresses why you should take action and plan for the worst case scenario to actually give you peace of mind that your wishes will be known.

Life changing events typically prompt one to think about altering legal documents such as life insurance beneficiaries, bank accounts and payable on death documents, retirement beneficiaries, wills, trusts, powers of attorney documents, etc.  Life changing events may include births (including adoption), death, marriage (or re-marriage), divorce, and change in financial status.

Often, clients fail to take action when life changing events occur due to the assumption that the documents or designations will be difficult to change, alter or create and if legal work needs to be done, it may be costly and time consuming.  However, to worry about the unknown in regards to the care of a child is unnecessary if a parent is proactive and plans for unknowns.

Create a Last Will and Testament

It’s a responsible thing as a parent to create a Last Will and Testament when your child is born.  It is also a good idea to update your Will when life changing events occur.  In the Will, parents can designate a legal guardian for the minor child.  

North Carolina law provides if both parents are deceased then a Petition for Guardianship of a minor child may be filed with Superior Court-Special Proceedings Division in an attempt for the Petitioner to be named as the legal guardian for the child.  A Guardian ad Litem is appointed by the court as a temporary representative for the minor child to investigate the Petitioner’s request to the Court.  The Guardian ad Litem speaks for the child’s best interest and wishes so the child’s needs are heard without unnecessarily exposing them to the Court. The Guardian ad Litem is also an investigator for the Court and is only released from her duties as the Guardian ad Litem upon the court’s appointment of a Guardian for the minor.  

A named Guardian for the minor child would thereafter receive “Letters of Appointment” and a Court Order which is used to prove the legal ability to act for the minor child until the child reaches the age of majority at age eighteen (18).  A Court appointed Guardian is authorized to make arrangements for the legal care, custody and control of the minor child as would a natural parent and be thereafter responsible for the educational, religious, legal, medical and day-to-day decisions for the child.

The intent of a parent is memorialized in her Will and shown to the court as probative evidence of the wishes of the parent for her child. The Court must vet the Petitioner’s motives and ability to act as the child’s legal guardian but the parent’s wishes are more commonly adopted by the Court and help the named Guardian in their step to complete the legal appointment and obtain the necessary legal paperwork.  Parents who pass without a Will leave the appointment of a Guardian of a minor child up to the fate of a Court without any guidance from the parents.

Family Law and One Living Parent of a Child

If one parent dies and the other parent is alive, the parent living would have custody of the child absent a court order determining child custody to a non-parent for reasons such as unfitness of the parent, willful absence of the parent such as jail or deportment, unwillingness of the parent to act as a custodian, etc.  While alive, if the legal parents had been separated there might have been a legal contract or Court Order establishing custodial terms for the co-parenting. If the primary parent having custody under those legal documents dies, the living parent has standing to first act on behalf of their child as the now primary parent.

A parent’s constitutional right to act for their child’s well-being would trump any moving party (potential Guardian named in a Will, family member, close family friend, foster parent, etc.) in a court proceeding. This type of action would occur in District Court as a family law matter related to child custody.  A Guardian ad Litem is not typically appointed by the courts to investigate in this setting.

5 Steps to Choosing a the Right Legal Guardian for Your Child

So, how does a parent determine who is the right person to act for their child if they are unable? 

First, have a conversation with the other parent about planning for the future if you haven’t already put some of these legal documents in place. Discuss what documents need to be updated or established. 

Second, define what you would look for in a potential Guardian for your child.  Think of what needs your child has, not only at their current age but through to early adulthood. Pretend you have the conversation with your child about who they would want to care for them if you were not able.  

Third, make a list of potential Guardians.  Only list the contenders based on a fit with the needs of your child and the potential Guardian’s morals, values, personality, ability to parent, and other characteristics or traits that are important to your family. The potential Guardian does not have to be a relative.  Consider if the candidate is financially stable but don’t cross the person off the list if there is a question here; you can invest in life insurance or provide otherwise for the child if the Guardian will need financial assistance.

Fourth, have a serious conversation with the candidates still on your list about the role of a Guardian.  After these conversations you might cross some candidates off your list and the designation order may become clearer.

Finally, memorialize you decision with a legal document.  The Guardianship provision for the minor child would be in a Will but also could be referenced in a Trust and/or Power of Attorney.  Tell the Guardian what legal  document(s) they are named in and provide the Guardian with a true copy of the legal document.  Instruct the potential Guardian to keep the document in a safe place such as a fire-proof safe at their home or in a safety deposit box at a bank.  Also give the potential Guardian a certified copy of the child’s birth certificate and copy of the child’s social security card. These items can be difficult and time-consuming to obtain by a non-parent but are helpful if the time comes to request legal Guardianship with a Court.  Lastly, if your child is old enough to discuss death and a potential Guardian tell them who would be there for them if his parents could not (in an age-appropriate manner conducive to your child’s maturity).

Call Wilmington, NC Family Lawyers for Help with Tough Decisions

No parent wants to think about someone else raising their child.  To establish peace of mind, a parent should plan for the unknown. Take the time to walk through the above five (5) steps so that you protect your child. You can take steps now to ensure that your child receives the future you have imagined for them.  If you need assistance in reviewing your current documents or preparing documents to name a Guardian for your minor children, call Craige & Fox, PLLC today at 910-815-0085.

North Carolina General Statutes allow a homeowners’ association to file a claim of lien against property located within its neighborhood when a homeowner does not pay assessments as required by the restrictive covenants.  Once a lien is filed it is a cloud on the title to the property and the owner may not sell the property free and clear of the lien without paying the homeowners’ association.  The claim of lien remains on record for three (3) years.  If the owner does not pay, the homeowners’ association can foreclose on the claim of lien in the same manner as a bank foreclosure.  The process is governed by the restrictive covenants of the homeowners’ association and N.C. Gen. Stat. § 47C/F-3-116.

Process of Homeowners' Associations Foreclosure on a Claim of Lien

First, the board of directors must vote to proceed with foreclosure of the claim of lien.  This can be done by an affirmative vote by the percentage required for board action by the governing documents at a board meeting with the required quorum or by unanimous consent without a meeting.  Written proof of the vote by either minutes from the meeting or a signed resolution must be provided to the clerk of court as part of the foreclosure file.  Next the board of directors must appoint a trustee to file the foreclosure. The attorney hired by the board for collection matters may be appointed as the trustee.  North Carolina law requires the trustee to act in a neutral role, so if the foreclosure becomes contested, the attorney can appoint a substitute trustee and act solely as the attorney for the homeowners’ association.

The foreclosure is generally filed with the clerk of court; however, there are certain exceptions to this such as when the money owed consists solely of fines. The Notice of Foreclosure Hearing is served by sheriff, FedEx, and/or certified mail.  If the owner cannot be located, the Notice of Foreclosure Hearing is also posted at the property at least 20 days before the hearing.

At the hearing, if the clerk finds that there is a valid debt, a default, and proper notice of the hearing was provided, the clerk will enter an order authorizing the sale of the property.  The property can then be sold at public auction to the highest bidder.  Prior to the sale, a Notice of Foreclosure Sale must be mailed to the owner, posted at the courthouse, and published in the newspaper.

At the foreclosure sale, the highest bidder will be required to give a cash deposit of $750.00 or 5% of the amount of the bid, whichever is greater.  The trustee will then file a Report of Foreclosure sale with the clerk.  That bid will be held open for ten (10) days for upset bids.  If an upset bid is filed, the ten (10) upset bid period continues until there are no more bidders.  Once the upset bid period expires with no upset bids, the highest bidder will be required to pay the remaining amount of the bid and the property will be transferred by deed to him or her.

Restrictions and Rights of the Property Owner

The owner of the property can stop the foreclosure by paying in full, including costs and attorney fees, at any time up to when the upset bid period expires.  An uncontested foreclosure will generally take a minimum of 90 days to complete depending on the hearing date and cost approximately $2,250 though that can vary depending on the county and number of owners.

Most homeowners will not allow the association’s claim of lien to be foreclosed if there is equity in the property, and will generally pay what is owed before the foreclosure is completed.  However, if the property is foreclosed, the property will be sold subject to any superior liens.  Therefore, if the association has the first or only lien on the property, the property will likely be sold and the association will recover the money owed.

Why Homeowners' Associations Foreclose on a Claim of Lien

In most cases, however, there is a superior bank lien on the property.  Often the property is “underwater” and there is no equity.  For example, if the property is worth $200,000 and there is a first deed of trust to a bank for $225,000 there is no equity in the property.  If the homeowners’ association files foreclosure on the claim of lien, the property would pass to the highest bidder subject to the $225,000 bank lien.  In most cases, no one is going to bid on the property.  If that happens, the homeowners’ association spent money to foreclose and will recover nothing.

If this is the case, why do homeowners’ associations ever foreclose on a claim of lien?  It can be a good way to get the owner’s attention when a lien did not.  Ideally the foreclosure will be stopped before it ever gets to the sale because the owner will respond and pay in full or work out a payment arrangement with the homeowners’ association.  Unfortunately this is not always the case.  If the owner has abandoned property, they are not likely to respond to a threat of foreclosure  The board of directors of the homeowners’ association needs to be prepared for this scenario before beginning the foreclosure process.  If a homeowners’ association begins the foreclosure process in an attempt to get the attention of the homeowner and then  chooses to not complete the sale the association will have spent money and time trying to collect on the account and will not accomplish anything.

Another option for the homeowners’ association is to hold the sale and place a bid on the property.  No money is actually exchanged and the property is transferred to the homeowners’ association subject to the superior lien(s).  This does not mean the homeowners’ association is liable for the money owed to the bank or superior lien holders (with the exception of property taxes).  Rather, the homeowners’ association will hold title until the first lien holder eventually forecloses.  The homeowners’ association can lease the property to recover some or all of the money owed while waiting for the bank to foreclose.  This, however, does require the homeowners’ association to act as a landlord and take responsibility for the property including maintenance, taxes, and insurance.  There is also a risk that the superior lien holder will foreclose quickly and the property is never leased or is not leased long enough to recover the costs of the foreclosure.  For some boards of directors this is not worth the risk and they do not want to take the responsibility of holding title to the property.

Foreclosure on a Claim of Lien as a Last Option

Prior to filing foreclosure, the board of directors of a homeowners’ association needs to carefully consider the possible scenarios.  Some of the factors the board should consider:  Is the property occupied?  Is there equity in the property?  Why is the owner not paying?  For example, if the property is an empty lot with no equity, there are not likely to be any bidders and if the homeowners’ association does take title, the property cannot be leased.  It can “stop the bleeding” and sometimes cause the first lien holder to move forward with foreclosure more quickly but this is not always the case.  Generally the first lien holder does not base the decision to foreclose on the actions of the second lien holder so this should not be the sole motivation for filing foreclosure. On the other hand, if the property is occupied by either the owner or a tenant, they are more likely to respond because they do not want to lose the property.

Foreclosure can be a very useful tool for collection of assessments for homeowners’ associations, but it is a serious remedy that should only be done after considering all of the options and possible outcomes.  A homeowners’ association should speak with an attorney before proceeding with a foreclosure to discuss the association’s different options and the possible consequences of a foreclosure.

If you find yourself in a claim of lien situation and have more questions, please feel free to give us a call at (910) 815-0085. As experts in property law, we are the Wilmington, NC attorneys to call when you have questions.

 

Two books, Atul Gawande’s Being Mortal:  Medicine and What Matter in the End and Roz Chast’s Can’t We Talk About Something More Pleasant, explore the real “gray” behind the graying of America.  We all know the statistics:  the number of Americans 65 and older is expected to double by the middle of the century, over 20% of the US population will be over 65 by 2050 as compared to less than 10% in 1970, Health and Medicare costs will continue to rise as Social Security runs out, etc.

Confronting the Loss of Physical and Mental Autonomy

All of these warnings have been sounding for years.  What has not been discussed is how we will cope as a society, as families, and as individuals with the loss of physical and mental autonomy that accompanies age.   Likewise, how can a younger generation care for an older generation? Both Being Mortal and Can’t We Talk About Something More Pleasant bring these difficult issues to the forefront in compelling and easy to read narratives.

Dr. Gawande, a surgeon and popular author in his 40s, points out “Some will be alarmed by the prospect of doctor’s writing about the inevitability of decline and death.” Yet the very inevitability of aging and physical decline mandates a conversation because it happens to all of us whether we talk about it or not.  Without a conversation and taking steps, we cannot make a difference on how we age and how we die.

You Don't Have to Sacrifice Your Dignity as You Age

Dr. Gawande wants to improve the experience of aging by focusing on freedom and autonomy as we age and approach death.  Instead of being strapped in a wheelchair stranded in the hallway of a “Assisted” Care Facility, he wants individual rooms with locks on resident’s doors, no more than twenty residents per care facility, and the retention of the freedom  “to be authors of our lives” until the end. According to Dr. Gawande, most people do not want the “safety” of a wheelchair; they would rather have the independence of walking and risk a fall.  He supports his ideas with lively stories of tough-minded individuals, including stories of his mother-in-law and father, to make his points about what we face as a society and as mortal individuals.  We all are going to die, but that does not mean we have to sacrifice dignity for medical treatments that may actually shorten life or forego privacy in the name of safety.

Face "This Aging Thing" with Humor

Like Dr. Gawande, Roz Chast calls upon her area of expertise, as a popular cartoon artist for the New Yorker, and her parents’ experiences to illustrate and discuss aging parents.  Chast’s book is funny, insightful, and brings to light how difficult it is when the child becomes the caregiver.  Neither Ms. Chast nor Ms. Chast’s parents want to talk about death or “this aging thing,” much less assisted living.  Her parents have lived in Brooklyn forever, have done everything together (with the exceptions of WWII,  work, illness, and going to the bathroom) for decades, and are certain that they never want to be a burden to their only daughter.  

Ms. Chast uses wonderful cartoons to discuss and share the pain and absurdities of old age and dementia. Her graphic memoir talks about her mother’s gradual decline from a spotless house to clutter, dust, and piled up unopened mail.  Ms. Chast candidly and with heartfelt cartoons talks about her father’s dementia and her parents’ eventual move to “the Place” where her mother goes from a cane to a walker and where her father learns from the other residents that he talks too much.

Start the Conversation Now

Being Mortal and Can’t We Talk About Something More Pleasant are excellent reads that use personal stories to discuss the hard issues and choices we all must face as we and our loved ones age.  Although the topic is difficult to discuss, we must find ways to help our loved ones age with dignity and respect. Older adults and their families should begin a conversation now to discuss older family members’ wishes with regards to healthcare and long term care needs.

On October 14, 2014, North Carolina began recognizing same-sex marriages due to a federal court decision finding the state's denial of marriage rights to same-sex couples unconstitutional. North Carolina had previously denied marriage rights to same-sex couples by law since 1996.

With this new and exciting shift in the law comes state’s rights to married same-sex couples, one of which includes the availability of same-sex couples who are married to adopt in North Carolina.

Some civil district courts have allowed second-parent adoptions by same-sex couples in the western and central part of the state until 2010 when the North Carolina Supreme Court ruled 5-2 in the case of Boseman v. Jarell that the state law did not permit adoption by a second unmarried person regardless of the sex of those involved. The plaintiff in that case garnered much attention as Julia Boseman, a female  gay member of the North Carolina State Legislature. In June 2012 other same-sex couples sued in federal court seeking second-parent adoption rights. In 2013 the lawsuit was amended to challenge the constitutionality of the state's denial of marriage rights to same-sex couples. The shift in the law occurred on October 14, 2014 when U.S. District Judge Osteen ruled for the Plaintiffs.

Current North Carolina Adoption statutes allow our state’s citizens to adopt via direct placement, agency placement and stepparent adoption. Originally adoption was allowed by a married man and woman or by a single parent.  Same-sex couples, while even validly married by another state, were not allowed to adopt in North Carolina; however, one partner could adopt as a single parent and later extend some rights in loco parentis to a partner such as a power of attorney or custodial rights. Some civil district courts have also given legal standing to a same-sex partner in custody actions and granted custody rights to the other partner, whether a biological parent or not, upon the parties’ separation. 

The process for a same-sex stepparent adoption will follow the current process under existing Adoption statues (North Carolina General Statutes § 48, Article 4) and forms for a stepparent adoption. This can occur when a single parent has already secured an adoption for the minor child. The same-sex parties must already be validly married and have a marriage certificate.  

The Petitioner will be the spouse of the partner who has legal custody of the minor child. The spouse with legal custody of the minor child must consent to the adoption and will retain all legal rights to the child. The adoption process will still be mostly transactional in nature with a Clerk of Court being able to issue a Decree for Adoption if it is found by a preponderance of the evidence that the adoption is in the child’s best interest and 90 days have passed since the filing of the petition, unless the timely requirement is waived for cause. It is only necessary for a judge to hold a formal hearing if the Petition to adopt a minor stepchild is contested.  

The process for adoption via same-sex couples through direct placement or agency placement is still unclear at this time by our Courts. Currently these adoptions require consent, relinquishment, and/or  termination of parental rights by the living biological parents to the petitioner(s), even if one biological parent is an unknown parent. Fathers may still execute pre- birth consent to adoption.

If you or someone you know is interested in speaking with an adoption attorney regarding married same-sex couples and Second Parent Adoptions, please do not hesitate to contact Wilmington, NC attorney Ashley Michael at Craige & Fox, PLLC.

Celebrities Gwyneth Paltrow and Chris Martin have introduced a new phrase for the Hollywood Divorce called “conscious uncoupling,” but they are actually talking about using Collaborative Law to co-parent their minor children after separating.  This new catch phrase might start a trend across the country.   Husbands and wives who have decided to end their marriage by working together, like Gwyneth and Chris, may wish to cooperate and manage their separate households by communicating in a respectful manner throughout divorce lawyers and agreements.  Spouses may successfully resolve divorce issues, including custody, spousal support, division of martial estate-assets and debts, and payment of child support by using Collaborative law.

Collaborative Law in North Carolina

Collaborative Law is a recent trend in North Carolina, but it is not a new method for citizens to use in the areas of Domestic or Family Law. North Carolina enacted statutes in 2003 (NCGS §§ 50-70 through 50-79) which established collaborative law as an alternative to the judicial system making decisions in marital issues. Collaborative Law provides the framework for a husband and wife to discuss their wishes through interest-based negotiation using their own  voices. Attorneys help guide the husband and wife and present their needs to one another. The husband may have his own attorney and the wife may have her own attorney.  The end result is the parties take control over the outcome of the separation and dissolution of their marriage, not a Court and/or a Judge.

 A collaborative outcome leaves individuals feeling more empowered about the conclusion of the marriage since the husband and wife reach decisions by agreement rather than a Court ordered decision made by a Judge.  Each party may also be more likely to follow through on the terms of the agreement since the husband and wife made the decisions regarding separation of assets, payment of debts, and custody and support of the children.

Collaborative law may also reduce legal fees since time and effort will be spent reaching agreement, rather than staking out positions and arguing in Court.

Collaborative law is defined in the North Carolina General Statutes §50-71(1) as:

A procedure in which a husband and wife who are separated and are seeking a divorce, or are contemplating separation and divorce, and their attorneys agree to use their best efforts and make a good faith attempt to resolve their disputes arising from the marital relationship on an agreed basis. The procedure shall include an agreement by the parties to attempt to resolve their disputes without having to resort to judicial intervention, except to have the court approve the settlement agreement and sign the orders required by law to effectuate the agreement of the parties as the court deems appropriate. The procedure shall also include an agreement where the parties' attorneys agree not to serve as litigation counsel, except to ask the court to approve the settlement agreement.

Should parties voluntarily and willingly use collaborative law to create a binding legal contract with terms for separation that they agree upon, the only reason they need the Court (barring the later enforcement or contempt of the legal agreement) is to enter a Judgment for Divorce at the appropriate time. 

Collaborative Law Uses in Family Law and Domestic Matters

Sometimes solution-based sessions result in uncommon scenarios (e.g. agreeing to tell your children together you are getting divorced and agreeing on how and when to do so).  Agreements may be reached  that work for each spouse’s lifestyle, culture, morals, ethics, and/or values. 

To successfully implement collaborative law in domestic matters you need each party to choose an attorney trained in collaborative law.  The husband and wife and their attorneys meet and decide how to build their “team” based on the need, if any, of other professionals to assist the parties in informed decision-making.

Other professionals might be a financial analyst, child specialist, divorce coach, or mental health professional. The parties choose the legal issues that shall be addressed, assign homework such as document gathering, deadlines for collecting and sharing necessary information between each other, and determine a timeline for structured conference sessions in which to start reaching agreement. The parties determine the need for content of the sessions with the attorneys acting as a guide for each party to share their needs and interests; not just discuss goals and wants.  Parties will make informed choices on how to end their marriage, split finances and the marital estate, pay spousal support, pay child support, custody, and any other outstanding or unusual issues.  

Mediation vs. Collaborative Law

Collaborative law is sometimes confused with mediation.  In mediation, the parties work with a neutral third party who shares the voice of each party and shuttles back and forth between the parties who are usually kept in different rooms with their respective attorneys.  The mediator attempts to help the parties reach any common ground within legal topics already pled in a lawsuit pending with a Court.  While the mediator is sharing information between each party and attempting a resolution some information may be lost or misconstrued and in turn cause the parties to back away from resolution. 

Collaborative law differs from mediation in that the parties speak directly to each other rather than through a mediator.  This type of negotiation fosters each parties own goals and positions instead of arguing about interests and needs. 

Mediation is also a court-ordered process which adds to the cost of litigation.  Should the parties not agree in mediation how to resolve their legal claims then the case is calendared for Court with a judge. 

Mediation and collaborative law are alike in that both are confidential, both offer a safe space to explore ideas between the parties on how to settle their domestic disputes, and both offer the ability to control the outcome of your legal issues.

Additional benefits of collaborative law instead of traditional Divorce litigation or mediation include less emotional strife between the parties and a faster resolution of conflict.  Studies show that children of parents who are exposed to the court process, whether  by participating in court ordered evaluations or by testifying, by exposure to the parents legal stressors, have difficulty later in sustaining a positive relationship with their parents and others.  In collaborative law the husband and wife build their team to include a child specialist and the child will have a voice during the resolution of the divorce.

Collaborative law is not for everyone and parties must commit to communication, be responsive, be open and honest, abide by timelines, collect and share information, and be willing to do all of this in mostly face-to-face sessions.  It can be a difficult process to voice disappointment, anger, sadness, happiness, and many other emotions to your spouse. It takes active listening in order to attempt to collaborate on an agreement that meets the needs of husband, wife, and children.

The Only Collaborative Law Professionals in the Wilmington, NC Area

The only practice group of trained collaborative law professionals in the Cape Fear area is Coastal Collaborative Colleagues. Ashley Michael is a member of Coastal Collaborative Colleagues and also acts on the Board of Directors.  Coastal Collaborative Colleagues is a nonprofit, interdisciplinary group of professionals committed to “doing divorce differently.”  Check out the members of the group, their mission statement and more about Collaborative Law at www.coastalcollab.com and contact Ashley Michael at This email address is being protected from spambots. You need JavaScript enabled to view it. for assistance

Many clients wonder whether or not they should have a revocable living trust or if a will is enough.

A revocable living trust is not for everyone. Any Will lawyer that recommends a living trust every time is not properly evaluating the needs, wishes, and circumstances of a client.

Likewise, many people think that a trust is just for someone with a high net worth.  This is not necessarily the case. The following are some of the situations and questions that should be asked to determine if a revocable living trust is right for you.

1.  Are you concerned about a loss of mental capacity?  A revocable living trust can benefit someone with potential mental capacity issues since it may avoid a costly and complicated court supervised guardianship proceeding.  Ask yourself is there a history of dementia or Alzheimer’s in your family?  Has there been an early diagnosis of a loss of some mental capacity?   If so, you or a family member may benefit from a revocable living trust instead of relying simply on a power of attorney.  A living trust can be more specific regarding your wishes, can provide clear direction regarding the determination of incapacity, and also may provide more direction for the management and disposition of your assets.  By creating and drafting a living trust now, you may save thousands of dollars in the future and also avoid future family conflicts or disharmony.

2.  Do you have minor beneficiaries (children or others under 18)?  A revocable living trust may help preserve and manage assets for minors past the age of 18.  For example, a life insurance policy may fund a revocable living trust and manage assets for the benefit of your children until they reach age 25 or 30 rather than the proceeds from the policy being turned over to the minors when they turn 18.  In addition, a revocable living trust for the benefit of minors may also avoid a costly and complicated court supervised guardianship proceeding for the benefit of a minor.

3.  Do you own real estate outside of North Carolina?  Establishing a revocable living trust and titling any real property outside of North Carolina in the name of that trust may avoid an additional (ancillary) probate proceeding in another state. This may save your estate and beneficiaries thousands of dollars and allow for the quicker disposition or management of the real property located in another state.

4.  Are you concerned about privacy?  Privacy is also a possible benefit from a revocable living trust. In the event you are making numerous or complex specific gifts to individuals or charities, then a revocable living trust will allow you to keep these gifts private.   A Will becomes public record; hence we know what James Gandolfini's of the ‘Sopranos’ fame Will says.  On the other hand, when is the last time you went to the courthouse to review someone's Will?  Privacy may or may not be a benefit of a revocable living trust depending on your wishes, concerns, and estate plan.

Another important point to consider is the type of assets that you have and how they are titled.  Specifically, any assets (such as life insurance policies, 401K plans, or IRAs) that already have named beneficiaries will avoid probate.  Similarly, joint accounts with the right of survivorship, payable on death accounts, or real estate that is owned jointly with a spouse will usually automatically pass to the surviving account holder, named beneficiary, or surviving spouse.  Simply stated, property or assets  passing to a surviving spouse is usually straightforward; however, if there are minor beneficiaries who are named as joint account holders or beneficiaries, then a revocable living trust might be appropriate for the reasons stated above (management and control of assets or the benefit of your children beyond the age of 18).

Please note that a revocable living trust must be funded in order to be effective. Your assets must be re-titled in the name of the trust and your beneficiary designations must be updated in order to have these assets controlled by the trust. A qualified attorney may assist you in this process.

To summarize, a revocable living trust may benefit you or it may be unnecessary.  A conversation with a well-qualified Will attorney who can evaluate your specific circumstances and your specific wishes can help you decide if a revocable living trust is right for you.

Elderly Clients are a primary practice area for Craige & Fox, PLLC. Both the North Carolina State Bar and the National Elder Law Foundation have certified Lawrence S. Craige as a specialist in Elder Law and Jennifer N. Marshall is also an experienced Elder Law attorney.

For the clients we serve and their families, long term care options are of great concern and are a very emotional topic between parents, children, and grandchildren. Planning for future long term care, however, empowers our clients and their families to make decisions now that will affect them and their loved ones in the future.  This article will address the need to plan ahead for long term care and the different care options that are available to the elderly.  It also offers some suggestions regarding the appropriate next steps and making decisions about long term care.

What is Long Term Care?

Long term care is a variety of services, including medical and non-medical services, for people who have a chronic illness or disability.  Examples of chronic illness or disabilities are diabetes, hyperlipidaemia, Parkinson’s disease, multiple sclerosis, speech impairments, and cancer.

Long term care assists people with support services to help with activities of daily living.  Some examples of activities of daily living include dressing, bathing, using the bathroom, feeding, or attending to personal hygiene or grooming. Long term care can be provided at home, in the community, in assisted living, or in a nursing home.

Why talk about Long Term Care now?

It is important to plan ahead for long term care as health declines with age and many older adults will need assistance with one or more activities of daily living as they age.

What Are Your Long Term Care Options?

There are several long term care options available to older adults.  The appropriate long term care option depends on the older adult’s need for assistance.  Older adults may choose from less invasive services like adult day care or home health care which allow the senior to remain at home, or the older adult may look to more invasive living arrangements like an assisted living facility or a nursing home.

Adult Day Care:

Adult day care services provide a support group for seniors with functional and/or cognitive impairments. According to the North Carolina Department of Health and Human Services, adult day care provides an organized program of services during the day with the purpose of promoting seniors’ social, emotional and physical well-being and supporting personal independence of seniors.  Adult day cares must meet specific North Carolina State Standards for Certification and receive its certification from the Division of Health Service Regulation.  These standards are enforced by the State Division of Aging and Adult Services.

Home Care:

Seniors may have the option of procuring services from a home health care provider. Home health care services may be personal care that is extensive and complex in nature requiring a certified nurse aide to help with bathing, dressing, toileting, feeding, and ambulation. These services are regulated by the North Carolina Division of Health Service Regulation.  Home health care services may also be used for home management assistance like cooking, cleaning, laundry and shopping.  These services are regulated by the North Carolina Division of Aging and Adult Services.

Assisted Living Facility:

Assisted living facilities allow provide older adults with a combination of housing and personalized care services to assist with activities of daily living.  Assisted living facilities are designed to allow older adults to live in a home-like setting and maintain as much privacy and independence as possible while still receiving assistance with activities of daily living like bathing, dressing, meal preparation and housekeeping. Assisted living facilities are licensed in North Carolina by the Department of Health and Human Services through the North Carolina Division of Facility Services.

Nursing Home:

Nursing homes are the most invasive form of long term care.  A nursing home will typically provide a secure environment and all services to meet the social, medical, and physical needs of older adults.  Residents of nursing homes typically require assistance with multiple activities of daily living such as dressing, eating, toileting, and continence.  Residents of nursing homes may also suffer from a form of dementia or other cognitive impairments. Nursing homes must be licensed and regulated by the North Carolina Division of Health Service Regulation.

How Does the Senior or the Senior’s Family Choose the Appropriate Long Term Care Option?

Older adults or their families should plan now for any future long term care needs.  Older adults should discuss with their families their wishes to remain at home, move to an assisted living facility, or receive care at a nursing home.

Older adults and their families should be clear on what services are needed and review carefully any contracts provided by the service providers.  It is imperative that the senior or the senior’s family or caregiver have a clear understanding of the servicer’s contracts, what services are provided, what services fall outside of the basic agreement, and who is obligated to pay for the services provided.

Older adults and their families should also consider the service provider’s policy regarding staff qualifications, staff training, and educational requirements.

Finally, older adults and their families should consider what long term care financing options are available to the senior. Will the senior pay for long term care out of pocket, through insurance, or with public assistance like Medicaid? An attorney may assist a senior or their family in determining the financing options available to the senior.

Conclusion

Craige & Fox, PLLC has helped numerous families face and overcome the challenges associated with long term care planning and financing through proper legal planning.  If you or a loved one need assistance in determining the best course of action for long term care needs, please contact our office.

Not all Domestic Law attorneys encompass Adoption Law in their practice. Based on her compassionate spirit, diligent work ethic, and strong sense of family, Adoption law is a natural fit for
Ashley Michael’s law practice. This article will provide a brief outline of North Carolina’s laws surrounding Adoption in order to reach your goal of building a family.

In North Carolina there are 5 types of adoptions: (1) Agency (otherwise known as public adoption); (2) Direct Placement; (3) Stepparent; (4) Relative; and (5) Adult Adoptions. Not included in the 5 types are Interstate Adoptions  (ICPC) and International/Foreign adoptions (Re-adoption) outside of North Carolina. The adoptive child’s facts and past dictate the adoption type and process, contents of the adoption packet and timeline to reach your goal of a successful adoption.

Public versus Private Adoptions: It is a common assumption that private adoptions are expensive; however, there are other ways to extend your family besides going through the state’s foster care system.

Public Adoptions:

Agency Adoptions occur when an adoptive family seeks out a child for adoption and uses a state welfare agency or becomes a licensed foster parent/family. There is very little control or decision making in this process for the foster family and typically when a child becomes available you must act and have your home ready to accept the child. Generally there is no charge for an attorney as the state pays the fee for the adoptive parents. The adoptive parents, while fostering, usually collect money from the state/county for their services to house and care for the child.

The ultimate goal of the placing agency is reunification of the child with their parent or a blood relative, so fostering a child can be highly emotional. Most of the time, the foster parent(s) is(are) providing a safe haven for the child while the parent(s) is(are) working on reunification efforts; this can take a few months but typically lasts one to two years. If the child is placed back with their parent(s), you do not get the chance to adopt the child. Also, while the child placed in your home might be perfectly happy, healthy and loving, the children taken into custody by the state welfare agency have been removed for a reason and that child might have medical, educational, or mental  health issues as a result of things which happened to them in their prior environment.

Contact your local Department of Social Services Child Protection Services division in order to find out more about class cost, registration, and training. It is an amazing and selfless action to foster a child.

Private Adoptions:

1. Direct Placement Adoptions occurs when the biological parent(s) and the potential adoptive family have already connected (found each other and are interested in the adoption process). When Direct Placements derive consent to adopt from both biological parents to the intended adoptive family, the adoption process is less costly, mostly straightforward and form driven. The adoptive family should hire an attorney to complete the legal forms for the adoption process with the Court. The biological parent(s) could work with their own attorney, represent themselves, or ask the adoptive family to pay for their attorney.

Direct Placement using an adoption agency for coordination can be quite costly. An adoption agency tries to locate a child and match the child with a family seeking adoption. Beginning rates estimate around $20,000.00. The adoption agency does not provide attorney services in their adoption rate and the prospective adoptive family must secure their own legal advice and counsel. It is suggested, even before contracting for services with the agency, to have an attorney working with the adoptive family to protect and advise them of the agency’s process.

2. Stepparent Adoptions occur when a biological parent has married another person who then petitions the court to adopt the child. Should the other biological parent execute a consent the legal process is less costly and also  mostly form driven. The stepparent should hire an attorney to complete the legal forms for the adoption process with the Court.

Please note, North Carolina law does not allow same-sex couples to adopt a child even if marriage was legal in the state it occurred.

3. Relative Adoption occurs when a family member is adopting and both biological parents consent. Only close kin blood relatives fall into this category. The relative(s) should hire an attorney to complete the legal forms for the adoption process with the Court.

4. Adult Adoption occurs when a person or married couple petitions to adopt a person over the age of minority (18). The adoptee as well as the biological parents must consent to the adoption. One example is when the adult has been declared incompetent; the adoptee is appointed a Guardian ad Litem Attorney to represent the adoptee’s best interest and will then consent to the adoption. The potential adoptive parent/family should hire an attorney to complete the legal forms for the adoption process with the Court.

International Adoptions: When one adopts in another country, North Carolina allows a Re-adoption which registers the foreign adoption to enable a birth certificate to be issued for the adoptive parents and adoptee in North Carolina. The child is adopted in their respective birth country under said country’s laws then adopted again in the home state of the adoptive parents under US law. This can involve the Embassy from the sending county, interpreting foreign adoption forms to English and having them validly notarized, US Passports and green cards. This is necessary so your adoptive child may take advantage of US citizenship status and reap the state's laws and benefits.

Interstate Adoptions: When a child born and/or domiciled in one state crosses state lines when being placed with their adoptive family you must work with both the child’s birth state and the adoptive parents receiving state to complete the adoption. Both states have to approve the adoption.

General and Additional Adoption Facts:

All Adoptions must go through the court system for approval. After approval by the Court (Judge or Clerk), the adoption file is sent to our state Attorney General’s Office, Adoption Division for a final audit and approval before indexing in our State’s Registrar system for the regeneration of a new birth certificate. The child’s original birth certificate is then sealed and removed from public records.

Usually only one attorney is involved in the adoption process although the biological parent(s) may also secure their own attorney. The adoptive family’s attorney communicates with the biological parents to draft and execute the legal documents for the adoption. The adoption attorney then prepares an adoption packet and files it in Superior Court. The attorney will work with a Clerk or Judge who ultimately issues a Decree of Adoption and sends the adoption file to Raleigh, Office of Vital Statistics and Records for final approval, indexing and the regeneration of a new birth certificate.

If one biological parent executes consent to adopt an adoption can still be obtained but there are more hurdles to master to clear the child for adoption. What can be time consuming and more costly to the legal process is locating a parent for consent or clearing the child for adoption if the other parent will not consent to the adoption. Sometimes the non-consenting biological parent contests the Adoption and the case must then be heard by a Judge. Additionally, an adoption matter may morph into a Juvenile Court action for Termination of Parental Rights in order to clear the child for adoption. A Judge will ultimately decide if the constitutional right to parent a child should be taken away from a biological parent so the child may then be freed for the adoption. Then the adoption legal process can continue.

Other difficult scenarios to tackle to clear the child for adoption are “putative fathers” and/or “unknown fathers.” Working with an attorney will ensure the adoption result will be steadfast in case a biological parent surfaces years later and attempts to obtain rights to the minor.

A child at age 12 and over must sign a consent to be adopted by the prospective adoptive person(s).

All NC Adoptions are considered “closed” and the records sealed by the Court.

Direct Adoptions and Stepparent Adoptions necessitate Department of Social Services involvement (or another licensed agency) who will be ordered by the Court to perform a pre and/or post-placement assessment. The agency also provides a Report to the Court with background information among other things which must be shared with the biological parent(s). This comes at a cost paid for by the Petitioner(s) who wish to adopt.

Regardless of the facts and circumstances in any adoption case, it would be most prudent to contact an attorney to complete the legal process. Even forms can be intimidating and without legal advice a lay person could miss an important step which could leave a window for a biological parent to contest the adoption and ask the courts for some relief; therefore, usurping your adoptees’ sense of security and permanence. Without legal direction your adoption could also be flagged during the audit process in Raleigh with the Office of Vital Statistics and not approved which leaves the adoptive parent(s) and child without a birth certificate until the error(s) can be resolved.

Adoptions can be mostly form driven within the Superior Clerk of Court in NC, Special Proceedings Division. While it is sometimes mostly a black and white process, it is extremely detail oriented and your clerk of court assigned to the Petition is not allowed to give legal advice. It is not recommend that parties seeking adoption enter Superior Court without attorney representation.

Should you decide the opportunity to adopt is right for your family, the experience and end result will present many rewards too vast to quantify throughout a lifetime. This blog is intended to educate and quell some misbelief that adoption is too difficult and/or expensive to consider. Do not let the legal process, cost or trepidation of navigating legal channels prevent you from giving the gift of a forever family to a child.

A guardian is someone who is appointed by the Clerk of Superior Court to act on behalf of an incompetent adult.  Incompetency is a legal term indicating that an individual cannot manage his or her own affairs, meaning making decisions regarding money and property, or person, meaning making decisions concerning health care matters and residence.  Generally, there must be medical or psychological evidence to assist the Court in making a determination regarding an individual’s competency or capacity to make decisions.

Legal Guardianship Rights

Several rights of an individual may be affected if a guardianship is established.  The individual may lose the right to determine where he or she may live or the right to consent to medical treatment.   North Carolina Courts have held that other specific rights are retained, but those rights may be more difficult for the individual to exercise.  These rights include the right to marry, vote, create a will, drive, or contract.

Alternatives to Legal Guardianship

The guardianship process is very trying emotionally.  It is difficult to discuss with a loved one the need to have another person make decisions on their behalf and in their best interest.  Because a guardianship takes away a person’s right to manage his or her own affairs or person, alternatives should be considered before seeking guardianship.  These alternatives may include establishing the following:

·         A representative payee for the person’s income;

·         A Trust to hold and manage the person’s assets;

·         Durable Powers of Attorney for financial matters;

·         Durable Powers of Attorney for Health Care; and

·         Joint checking accounts.

Legal Guardianship Attorneys

The assistance of a skilled guardianship attorney can help the family make decisions regarding the availability and effectiveness of the above alternatives to guardianship.  The skilled attorney can also help the family make decisions about the need for and practical aspects of a guardianship law.  Discussions about support, the guardianship legal process, and the need for caregivers with an attorney may help a family make good decisions for the benefit of their loved one.

In North Carolina, there are several different forms of real property.  Most people are familiar with a traditional single family home that sits on a defined lot in either a planned development or on a private tract of land.  Other people desire to live in a home with fewer maintenance requirements.  This can be either a townhouse or a condominium.

Town-homes are similar to free-standing single family homes but they are generally located side by side and sometimes include a small yard or patio.  Town-home owners also own the land beneath the townhouse which is sometimes referred to as the “footprint.”  There is almost always a homeowners association law that maintains the common area shared by all the town-home owners in the neighborhood.  The association may also provide insurance and/or maintenance for the outside of the buildings.  The assessments will vary depending on the services being provided and it is important for the owner to understand the details which will be spelled out in the restrictive covenants and bylaws for the association.

Condominiums are a relatively new form of real property ownership which were first built in the 1960s.  They often resemble town-homes from the outside but they are different in many ways.  Instead of owning the land, a condominium owner has an interest their individual space which was quite a revolutionary idea fifty years ago.  As opposed to owning the land beneath the building, the owner of a condominium owns an air space.  The specific ownership interest is defined in the governing documents and is generally from the finished interior surfaces and in.  The rest of the property, including the outside of the buildings, the land, and any amenities are considered common area and are owned jointly by every condominium owner in the development.  The assessments for condominium owners go toward maintenance of the common area.  Because the condominium association maintains much more property than an association in a typical planned community with single family homes, the assessments are often much higher.  On the other hand, the condominium owner’s personal household expenses can be much less than those for an owner of a single family home since the association maintains the building and provides insurance.  Again, it is important for the owner to carefully review the association’s governing documents to fully understand their rights and obligations.

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Craige & Fox, PLLC
701 Market Street
Wilmington, NC 28401
910-815-0085 Phone
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