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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.

The vast majority of homeowners use financing to purchase their home. In North Carolina, when a homeowner finances the purchase of their property a deed of trust is recorded with the county register of deeds. The deed of trust grants the lender an interest in the property as collateral for the loan and gives the lender the right to foreclose if the owner does not pay the loan.

North Carolina Homeowners's Association Rights

North Carolina also gives homeowners’ associations the right to file a claim of lien against the property when an owner does not pay the assessments owed pursuant to the association’s governing documents. The association also has the right to foreclose the claim of lien, just like a bank. By law, the association’s lien is subordinate to most bank liens. Simply put, if the bank forecloses, the association’s lien in extinguished and the property passes free and clear of the association’s lien. When this happens, the association no longer has a remedy in the property itself.  

Who is Responsible for Assessments Before, During, & After Foreclosure

It is common for a bank foreclosure to take many months or sometimes even years. The new owner is responsible for the assessments that accumulate after the foreclosure, but not the earlier delinquency.  Under the 2013 changes to N.C. Gen. Stat. § 47C/F-3-116(j), the new owner’s responsibility for the assessments begins when the upset bid period expires which is generally 10 days after the foreclosure sale. The association’s only remedy for the assessments owed before that is to seek recovery from the previous owner by filing a lawsuit against him or her. In neighborhoods with a high percentage of second homes and investment properties, the kind more likely to be foreclosed, this can result in a significant burden on the remaining owners.

Real Property is often owned by more than one person. Joint ownership can occur as a result of a joint purchase of real property or as a result of inheritance. In both cases, the joint owner has an undivided interest which means that although the joint owner owns a one- half interest in the property, they cannot point to the specific portion of the property that they own.

Often, issues arise between joint owners of property over how to use the property, who pays the taxes, who pays for repairs or a new roof on the property, or whether to sell the property. When the property owners cannot agree, a joint owner has the right to initiate a Partition proceeding.

A Partition proceeding is a lawsuit filed by a joint tenant or tenant in common owner of property to force the division or sale of real property. Partition actions start with a petition and are Special Proceedings brought before the Clerk of Court. A Partition action must be instituted in the County where the land lies. There are two types of Partition proceedings, Partition in kind and Partition by sale.

Partition action in kind is possible only when the property can be physically divided in a manner that each joint owner receives their share. For example, one hundred acres could be physically divided to allow for two joint tenants each owning a fifty percent interest to receive fifty acres. Of course, who has road frontage, access and the condition of the land must be considered as well. In Partition in kind proceedings, the Clerk of Court appoints three  commissioners to oversee the division of the property. The law says Courts favor Partition in kind rather than Partition by sale.

Partition by sale occurs when the property is unable to be physically divided or cannot be divided equally. For example, a single one-half acre lot with a house constructed in the middle of the lot cannot be divided in a manner that would allow each joint owner to receive their interest. In Partition by sale proceedings, the Clerk of Court appoints a Commissioner to oversee the sale of the property. The proceeds of the sale are deposited with the Clerk of  Court. A hearing is held before the Clerk of Court to divide the proceeds.

Partition proceedings are the law’s answer when joint property owners cannot agree. Disagreements regarding the sale, use, or costs of property may be resolved by retaining an attorney to initiate a Partition proceeding or to work out an agreement between joint owners.

In general, homeowners’ associations for both planned communities with single family homes or town-homes and condominium developments have the right to collect assessments from owners. The amount collected and what the assessments are used for will depend on the governing documents of the association but they are typically used to maintain common elements. Due to the fact that condominium developments maintain a significant amount of property included in the common elements their dues will often be significantly higher than those in a planned community. Some planned communities will collect assessment only for the purpose of maintaining  storm water ponds while others have numerous amenities such as a clubhouse or swimming pool. The more the community offers, the higher the assessments will be.

There are several ways a homeowners association can collect assessments from owners. For most communities, the collection of assessments is governed by either the Planned Community Act (N.C. General Statute § 47F) or the Condominium Act (N.C. General Statute § 47C) in addition to the governing documents such as the recorded restrictive covenants and the bylaws. The association can collect the dues by either filing a claim of lien and then foreclosing on that claim of lien or filing a lawsuit against the owner personally. N.C. General Statute 47F/C-3-116 governs the specific requirements:

N.C. Gen. Stat. § 47C-3-116 (Condominiums)

N.C. Gen. Stat. § 47F-3-116 (Planned Communities)

A claim of lien is filed with the county clerk of court and is public record. It is technically an action against the property, not the owner personally. In the event the owner tries to sell the property, the lien will be found in a title  search and must be paid before the property can be sold. It may also affect the owner’s ability to refinance. Prior to filing the claim of lien, the association must send notice of the intent to file the lien and collect attorney fees, an account statement, and notice of the right to contact an association representative regarding a payment plan. The notice need only be sent by first class mail. The owner will be given a minimum of fifteen (15) days to pay the debt in full without incurring attorney fees. In addition the owner can contact the designated association representative to propose a payment plan but the  association has no obligation to accept.

In the event the owner does not pay the assessments owed, the association can file an action to foreclose on the claim of lien. This is the same process a bank uses to foreclose on a property when the owner does not pay  heir mortgage. In order for an association to foreclose on a claim of lien North Carolina statutes require the assessments owed be delinquent for at least ninety (90) days and the board of directors of the association vote to proceed with foreclosure.

The association can also file a civil action against the delinquent owner. This involves filing a lawsuit and suing the owner personally for the amount owed. The suit can be brought in small  claims court, district court, or superior court depending on the amount owed. Many counties, including New Hanover and Pender, have mandatory arbitration for lawsuits involving an amount less than $15,000. If the owner files an answer, the case will be heard initially in front of an arbitrator instead of a judge. The arbitration hearing is less formal than a trial in front of a judge. If the association is successful in winning the suit, whether through a judge or an arbitrator, a  judgment for money owed will be entered against the owner. The judgment is public record, can affect the owner’s credit rating, and can be transferred to other counties or states. The judgment is a lien against not only the property located in the neighborhood with the association but also the homeowner’s other property located wherever the judgment has been filed. Ultimately the judgment can be sent to the sheriff who will then search for property that can be seized and sold to satisfy the judgment.

Ultimately most matters do not result in the delinquent owner losing property to pay assessments. It is beneficial to both the association and the delinquent owner to work out payments in some manner. Most importantly, the  owner should respond early in the process. It is much more difficult to come to a mutually agreeable arrangement when the owner waits until the property is being sold on the courthouse steps to come forward.

Collaborative Divorce is a reasonably-priced dispute resolution process established by North Carolina law for settling divorce and family law disputes outside of court. Ashley is a trained Collaborative Law  practitioner and a member of the only Collaborative Law practice group in and around the Cape Fear Area. Learn more about Collaborative Divorce and find out if it could be right for you at:

http://coastalcollab.squarespace.com/collaborative-divorce

 

North Carolina General Statutes-Juvenile Code

North Carolina General Statutes-Domestic /Family

North Carolina General Statutes-Adoptions

North Carolina General Statutes-Incompetency and Guardianships

North Carolina Child Support Collections  (you can estimate child support and run a child support worksheet-but check with an attorney for its accuracy)

Coastall Collaborative Colleagues - Doing Divorce Differently - Family Law Attorney Ashley Michael is a part of this group

International Academy of Collaborative Professionals:


Adoption services in/around Cape Fear Area:

      Children's Home Society of North Carolina

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

North Carolina Office of the Court: Cumberland County

Pro Se packet for filing Absolute Divorce.  Please note these documents would need to be tailored to your specific facts and filed in the county where you currently reside.

North Carolina Office of the Court: Wake County

Pro Se packets and information for domestic matters in our family courts.  Please note these documents would need to be tailored to your specific facts and the county where you are filing your lawsuit.



 

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Craige & Fox, PLLC
701 Market Street
Wilmington, NC 28401
910-815-0085 Phone
910-815-1095 Fax

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