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Political Sign Display

In the building to a political election, neighbors may differ on whether they wish to support their preferred candidate with a sign in their yard, or to never see a certain candidate’s name again.  For community associations in North Carolina, the association’s declaration, the North Carolina General Statutes, and local ordinances provide the guidelines for how and when political signs may be displayed within a neighborhood.

A community association’s ability to regulate political signs is governed by North Carolina General Statutes Section 47F-3-121, which applies to all community associations regardless of when formed.  For restrictions registered prior to October 1, 2005, the statute provides that no restriction on the use of land shall be construed to “regulate or prohibit the indoor or outdoor display of political signs by an association member on property owned exclusively by that member” unless the restriction specifically uses the term “political signs.”  For restrictions registered on or after October 1, 2005, the restriction “shall be written on the first page of the instrument or conveyance in print that is in boldface type, capital letters, and no smaller than the largest print used elsewhere in the instrument or conveyance . . .” and must specifically state ‘THIS DOCUMENT REGULATES OR PROHIBITS THE DISPLAY OF POLITICAL SIGNS’”

Even when the declaration does not explicitly prohibit the display of political signs, the Association may prohibit or regulate the display of political signs earlier than forty-five (45) days before the day of the election and later than seven (7) days after an election day. The Association’s regulation cannot be more restrictive than any applicable city, town, or county ordinance that regulates the size and number of political signs on residential property. 

Wilmington Law and Politcal Signs

The applicable section of the New Hanover County Ordinances, Article IX Section 93(4), provides that non-illuminated political signs not exceeding 12 square feet in area may be placed on private property.  Such signs must be removed no later than 30 days after the applicable election or referendum.  Likewise, the applicable City of Wilmington ordinance, found in Section 18-576, sets out that political signs, which are non-illuminated and do not exceed twelve square feet in sign area, are permitted in all districts, and must be removed within thirty days after the applicable election.   

Contact an attorney if you are uncertain whether your Declaration complies with N.C.G.S. § 47F-3-121, or if you have questions about the extent to which your community association can regulate the display of political signs.  

 

Continuing Care Retirement Communities (CCRC’s), also known as Life Care Centers, are becoming more and more popular as a housing option for seniors. Carolina Bay at Autumn Hall, Brightmore of Wilmington, and Plantation Village are all CCRC’s located here in Wilmington.  Each facility offers the promise of an active, social, and stimulating lifestyle with all of the necessary medical care and the security of knowing that you will not have to move again as your level of care increases.

A properly qualified and experienced Elder Law Attorney may be an important part of the admissions process. A CCRC contract is extremely complex and the decision to move from your home into a CCRC is not only a difficult and important life choice, it is also a difficult and important financial choice. And as with any important financial relationship, your role as a resident and the CCRC is controlled by a contract. A qualified and experienced Elder Law Attorney may be a very important part of the team when the decision is made to move to a CCRC.  The Elder Law Attorney can assist you in contract negotiations and can explain the contract so you understand your rights and responsibilities.  Most importantly, a good Elder Law attorney can help make sure that the contract meets your needs and North Carolina statutory requirements.

CCRC’s, often in exchange for a significant fee,  may provide a full spectrum of care – from independent living, to assisted living, to skilled nursing care.  Initially the CCRC may accept only people that are healthy and are able to live independently. However, once you are admitted, you are assured that you will have care that meets your needs for the rest of your life and that you will not have to move again.  A good Elder Law Attorney can help you understand who decides when you move to the next level of care (from independent living to assisted living, for example) and what criteria is used.  You should ask the CCRC what happens if your spouse requires a different level of care than you do.  Does the contract allow you to stay with your spouse or must you live separately in different levels of care?  

 

Here are some other very important questions that a qualified elder law attorney can answer after reviewing a CCRC contract:

  1. What are the payment terms of the contract? CCRC’s offer different types of contracts (from a one payment for all services model to fee for service model to a rental agreement) and each one has pluses and minuses and different payment terms.

  2. Who owns the living space?  You, the CCRC, or someone else?

     

  3. As mentioned above, how are decisions made to move residents from one level of care to the next? Often one spouse may require a different level of care than another.  Does this mean one spouse must continue to reside in independent living while another spouse moves to the assisted level of care?

     

  4. When does a resident need to supplement services with paid care?

     

  5. What happens if a resident runs out of money?

     

  6. What happens if the CCRC runs out of money/goes bankrupt?

     

  7. Is the CCRC Medicare/Medicaid certified?

     

  8. Is long-term care insurance still required when you move into a CCRC?

     

  9. What is the financial status of the CCRC?

     

  10. What happens to your funds held by the CCRC when you pass away?

     

  11. How does a resident qualify for a refund?

     

  12. Is there an arbitration provision in the CCRC contract?

  13. If you decide to move out, what does the CCRC contract require?

 

Another good resource for CCRC’s is CARF International. CARF is one of the few organizations that accredit CCRC's.  Likewise, in North Carolina the Department of Insurance puts out a reference guide to CCRC’s that is very useful.

Making the decision to move into a CCRC involves a lengthy contract, a significant amount of research, and a hefty financial commitment. A good Elder Law Attorney can help you ask the right questions and get the right answers before making the decision to move into a CCRC.

The New York Times recently published an article concerning financial abuse of the elderly.  The article provides several disturbing scenarios concerning financial exploitation of the elderly and points out warning signs that are often missed. Links from the Consumer Financial Protection Bureau to help spot financial exploitation before it happens are also included in the article.

What the article does not include, however, is whether or not concerned relatives should consult with an attorney regarding financial exploitation of an elderly family member. A qualified Elder Law Attorney may assist in helping to prevent financial exploitation before it happens.  A good Elder Law Attorney may also aid in recovery of funds in the event financial exploitation has occurred.

It is self-evident that the best way to avoid financial exploitation is to stop it before it starts. To that end, consulting with a qualified Elder Law Attorney can be valuable and cost effective. A good Elder Law Attorney can discuss strategies to avoid financial exploitation (Trusts, correct titling of bank accounts and brokerage accounts, proper role and use of a power of attorney, correct disclosures, etc.) and can also properly advise parents and children regarding their roles, rights, and responsibilities. For example, preventing financial exploitation may be as simple as explaining the nature of a fiduciary relationship to a son or daughter and making sure the child understands they must act in their parent’s best interest instead of their own interest.   A son holding a Power of Attorney for a mother generally cannot use the mother’s assets to pay for his expenses.  A discussion with family members on the issue of separate fiduciary accounts to ensure that a parent’s funds are not used for a child’s expenses may also be helpful.

Likewise, a fiduciary must prove they have done their job correctly (this is a shift from the usual burden of proof that requires a plaintiff to show that the defendant has done something wrong). This also
means that a fiduciary must keep accurate records and must always act for the benefit of the party whose funds they are managing. Meeting with an attorney and having the attorney advise all of the family
members of each party’s proper role, including the correct recordkeeping and appropriate disclosures, may prevent financial exploitation before it happens. In other words, an ounce of prevention is worth a pound of cure.

Similarly, an attorney may give timely advice regarding filing a civil lawsuit in order to recover assets that have been taken. Too often, someone who has been exploited moves too slowly or too late and may not be able to recover any of their assets in a lawsuit.. A fiduciary (someone who has a power of attorney or a Trustee) exploiting the older person may have spent all of the money that they have taken and it may appear impossible to recover any assets. Consulting with an attorney may increase the chances of not only getting a judgment against a thieving fiduciary or caregiver, but also collecting on that judgment. Bank accounts can be frozen, real property may be liened, and sums may be recovered if the attorney is able to move quickly once the exploitation has been discovered.

Financial exploitation is becoming more and more prevalent as America ages. Consulting with an attorney may not only prevent the exploitation before it occurs, but may also increase the chances of recovery in the event an elderly parent has been exploited by a fiduciary, power of attorney, caregiver, family member, trustee, or predator.

Just over one in every eight Americans age 40 to 60 is both raising a child and caring for a parent. It is estimated that between 7,000,000 to 10,000,000 adults are caring for their aging parents from a long distance. The Sandwich Generation is the generation of adults caring for both a child and an aging parent.

Carol Abaya categorizes the different scenarios involved in being a part of the sandwich generation: (1) Traditional: those sandwiched between the aging parents who need care and/or help and their own children; (2) Club sandwich: those in their 50s or 60s sandwiched between aging parents, adult children and grandchildren, or those in their 30s and 40s, with young children, aging parents and grandparents; and (3) Open faced: anyone else involved in eldercare.

However you are sandwiched, when your parents were younger they probably functioned well enough as a team and did not need your assistance to live their lives.  But as your parents get older and cope with the death of a spouse, (statistics indicate it is usually the husband who passes away first) your relationship changes and living alone may be very traumatic for your mom, the surviving wife.  She not only has lost a lifelong partner, but she also must develop new routines around the house and a different way of interacting with family and friends.  A son or daughter’s visit to a recently widowed parent, particularly when the son or daughter has their own children, can be very difficult.  Below is a checklist to guide you and your newly solo Mom (or Dad) to determine if assistance may be needed to assist Mom who is now living alone:

1. Is it safe for your aging parent to drive? Take a ride with your Mom or Dad and let them drive. Can they drive safely?  Can they find their way to the new restaurant that they heard about from their friends?  Does the car have any unexplained dents or scratches?  This is a very delicate and difficult subject because the loss of the ability to drive is associated with a loss of independence. If you feel that it is no longer safe for your parent to drive and you believe your Mom or Dad will resent you for even introducing the subject, have their physician discuss the issue. Their Doctor should be able to give medical reasons why it is unsafe for them to continue driving.  Discuss with your Mom or Dad  alternative transportation arrangements that may be used if Mom or Dad stop driving.

2. Is the mail piling up? If the mail is piling up, then it may be because your Mom can no longer understand what the mail says or how to pay the bills.  In addition to the obvious risk of the lights being turned off, there is also the risk of financial exploitation by third parties.  Gently review the financial records with your aging parent not by asking them if they need help, but by asking them to show you what bills need to be paid and how they should be paid in the event something does happen and they require assistance.  Remember that Mom has a right to refuse your assistance and access to her bills and financial information. Explain to Mom or Dad that you only wish to discuss their bills and finances to have a better understanding if you ever need to assist in the future.

3. Are prescriptions being taken as needed and in the correct dose? Check medications to see how often they are being refilled.  Ask your Mom what medication she takes, how often, and why? Make sure to confirm with her Doctor that she has answered appropriately. Note you will need your parent’s permission or a Health Care Power of Attorney to authorize the release of medical information to you.

4. Is the house being maintained? Is the house set up to prevent falls?  Is a discolored ceiling a sign of a water leak?  Is a formerly spotless house now messy?  Has the grass been cut?  Are carpets loose or are their other tripping hazards in the home?  Lack of maintenance may indicate a lack of ability to properly maintain the home.  Falls are a significant risk for the elderly and you should carefully examine the property for any tripping hazards.

5. Is your Mom eating right? Ask your parent about meals and what he or she cooks. Is the food in the refrigerator stale or expired?  Is it full of TV dinners or repeats of the same item?  If it is, then your Mom may not be eating right or forgetting what she has already purchased.  Meals may need to be delivered to the home or you may need to make other arrangements for appropriate nutrition.

We are “sandwiched” between our own lives and children and wanting what is best for Mom or Dad. Using this checklist should help indicate when in home assistance may be required if Mom wishes to continue to live in her home or, in the alternative, that living at home may not be the best arrangement.

Remember that as long as Mom has the capacity to make her own decisions, she may continue to make her own decisions regarding her finances and health care without consulting with family or friends. If you are concerned about Mom’s ability to make her own decisions, it may be helpful to speak with qualified Elder Law attorneys who may be able to assist your Mom and her family meet the changing circumstances.

As our clients age and start planning for their long term care, clients may and their families should research local Assisted Living, Memory Care, and/or Skilled Nursing Facilities before making any decisions. Certainly we encourage and assist our clients to stay in their homes as long as they wish and as long as they can get the care they need. Nonetheless, often an Assisted Living facility may be the next best step.

 

When choosing a facility, we advise our clients to take into account their resources and their health care needs. Some clients may only need Assisted Living care while others may need Skilled Nursing care. Keep in mind that the level of care required may change as the resident ages. Likewise a resident’s ability to pay may change over time. Some clients receive enough monthly income and have enough available resources to pay privately for a facility, while other clients may need to apply for Special Assistance or Medicaid Benefits.

 

In addition, we recommend that our Elder Law clients carefully review the admission agreements and financial stability of a facility before making a deposit or signing any documents. Important provisions include cost increases, possible tax deductions of long term care payments, who decides what level of care is required, what happens if spouses need different levels of care, what happens if a resident runs out of funds, what happens to any deposits in the event of a death, etc.

 

Below is a chart that may be useful in locating local Assisted Living, Memory Care, and Skilled Nursing Facilities in New Hanover County and surrounding counties. This list also indicates if the facility accepts Special Assistance or Medicaid payments. Special Assistance is a public benefit that provides payment for care in an Assisted Living facility or Memory Care facility for those who meet the eligibility requirements. Medicaid is a public benefit that provides payment for care in a Skilled Nursing facility for those who meet the eligibility requirements. Please note when referring to the below chart that the list is non exhaustive as some facilities did not wish to be included or did not respond to requests for information.

 

Craige & Fox, PLLC does not endorse any of the below facilities, but simply provides this list as a reference. We encourage you to visit the North Carolina Department of Health and Human Services website which provides facility inspections, ratings and penalties for Assisted Living, Memory Care and Skilled Nursing Facilities in the state of North Carolina when searching for a facility for you or a loved one. And of course there is no substitute for an on-site visit to make a determination of how a facility takes care of its residents.

 

Facility

Type of Facility

Special Assistance Accepted (when beds are available)

Medicaid Accepted (when beds are available)

Ashe Gardens

300 West Ashe St.

Burgaw, NC 28425

910-259-8070

http://www.meridiansenior.com/community

Memory Care

No

Yes

Autumn Care Nursing and Rehab Center of Shallotte

237 Mulberry Street
PO Box 2337
Shallotte, NC 28459

910-754-8858

Skilled Nursing and Rehab

No

Yes

Autumn Care of Myrtle Grove

5725 Carolina Beach Road
Wilmington, NC 28412

910-792-1455

http://www.autumncorp.com/locations.aspx?facid=13

Assisted  Living and

Skilled Nursing

No

Yes

Azalea Health and Rehabilitation Center

3800 Independence Blvd.
Wilmington, NC 28412

910-392-3110

http://azaleahealth.org/

Skilled Nursing

And Rehab

No

Yes

Brunswick Cove Nursing Center

1478 River Road, Hwy. 133 S.
PO Box 916
Winnabow, NC 28479

910-371-9894

http://www.brunswickcove.com/contact.html

Assisted Living and

Skilled Nursing

Yes

Yes

Carillon Assisted Living

1125 East Leonard Street

Southport, NC 28461

910-454-4001

http://www.carillonassistedliving.com/

Assisted Living and

Memory Care

Yes

Yes

Cedar Cove Assisted Living

420 Jasmine Cove Way

PO Box 15027

Wilmington, NC 28408

910-397-7812

Assisted Living and

Memory Care

Yes

Yes

Champions Assisted Living at the Davis Community

1007 Porter’s Neck Road

Wilmington, NC 28411

910-686-6462

http://www.thedaviscommunity.org/

Assisted Living

Yes

No

Clare Bridge of Wilmington

3501 Converse Drive

Wilmington, NC 28403

910-790-8664

https://www.brookdale.com/communities/clare-bridge-of-wilmington/?_vsrefdom=national-locations/&gclid=CNr6hbPFv8UCFcIdgQod07IAKg

Assisted Living and Memory Care

No

No

Cypress Pointe Rehabilitation Center

2006 S. 16th Street

Wilmington, NC 28401

910-763-6271

Skilled Nursing

No

Yes

Dosher Memorial Hospital Extended Care

924 N. Howe Street
Southport, NC 28461

910-454-4607 or 457-7696

http://www.dosher.org/getpage.php?name=index

Skilled Nursing

No

Yes

Health Care Center at The Davis Community

1011 Porter's Neck Road
Wilmington, NC 28411

910-686-7195

http://www.thedaviscommunity.org/

Skilled Nursing and

Memory Care

Yes

Yes

Hermitage House

4724 Castle Hayne Road

Castle Hayne, NC 28429

910-675-2988

http://www.meridiansenior.com/community/hermitagehouse

Memory Care

Yes

Yes

Huntington Health Care and Retirement Center

311 S. Campbell Street
Burgaw, NC 28425

910-259-6007

http://huntingtonhc.com/

Assisted Living and

Skilled Nursing

Yes

Yes

Karon's Family Care Home

570 Oak Tree Road
Willard, NC 28478

910-285-3246

Assisted Living

Yes

No

Liberty Commons Nursing & Rehab Center

121 Racine Drive
Wilmington, NC 28403

910-452-4070

http://www.libertyhealthcareandrehab.com/libertycommons/

Skilled Nursing and Rehab

No

Yes

Liberty Hill Family Care

1874 Farmers Union Road
Clarkton, NC 28433

910-647-0216

This email address is being protected from spambots. You need JavaScript enabled to view it.

Assisted Living

No

No

Mt. Olive Family Care

Route #1, Box 204-C
2583 Red Stone Road
Whiteville, NC 28472

910-628-7755

Assisted Living

Yes

No

New Hanover House

3915 Stedwick Court
Wilmington, NC 28412

910-632-2671

http://www.meridiansenior.com/community/

Assisted Living and

Memory  Care

Yes

Yes

Northchase Nursing & Rehab

3015 Enterprise Drive
Wilmington, NC 28405

910-791-3451

Skilled Nursing and Rehab

No

Yes

Pacifica Senior Living

2744 S. 17th Street
Wilmington, NC 28412

910-452-1114

http://www.pacificawilmington.com/

Assisted Living and

Memory Care

Yes

Yes

Pender Memorial Hospital - Extended Care

Skilled Nursing Unit

507 E. Fremont St.
Burgaw, NC 28425

910-259-5451

Skilled Nursing

No

Yes

PenDu Rest Home

685 North Carolina Hwy. 50
Wallace, NC 28466

910-259-4469

Assisted Living

Yes

No

Premier Living Inc.

106 Cameron Street
PO Box 196
Lake Waccamaw, NC 28450

910-646-3132

Skilled Nursing

No

Yes

Shallotte Assisted Living

PO Box 1559
424 Mulberry
Shallotte, NC 28459

910-754-6621

http://www.shallotteassisted.com/

Assisted Living

Yes

No

Sherwood Manor Rest Home

1605 Robinhood Rd.
Wilmington, NC 28401

910-762-9531

Assisted  Living

Yes

No

Silver Stream Nursing & Rehab. Center

2305 Silver Stream Drive
Wilmington, NC 28401

(910) 362-3621

http://www.savaseniorcare.com/

Skilled Nursing and Rehab

No

Yes

Spring Arbor of Wilmington

809 John D. Barry Drive
Wilmington, NC 28412

910-799-4999

http://springarborliving.com/locations/wilmington-nc.htm

Assisted Living and

Memory Care

Yes

Yes

The Commons at Brightmore

2320 41st Street
Wilmington, NC 28403

910-392-6899

http://www.brightmoreofwilmington.com/lifestyle-choices/memory-care/

Skilled Nursing and Memory Care

No

No

The Kempton at Brightmore

2298 41st Street
Wilmington, NC 28403

910-332-6899

http://www.brightmoreofwilmington.com/lifestyle-choices/assisted-living/

Assisted Living

No

No

Trinity Grove of Wilmington

631 Junction Creek Drive
Wilmington, NC 28412

Phone  910-442-3000

http://trinitygrove.net/

Skilled Nursing and

Memory Care

No

Yes

Wilmington Health & Rehab

820 Wellington Ave.
Wilmington, NC 28401

910-343-0425

Assisted Living and

Skilled Nursing

No

Yes

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

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