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Life or Death Decisions: Healthcare Powers of Attorney

Posted by on Sep 15, 2018 in Blog, Elder Law, Estate Planning and Asset Protection | 0 comments

Life or Death Decisions: Healthcare Powers of Attorney

Life or Death Decisions: Healthcare Powers of Attorney By Amy A. Edwards Using a Healthcare Power of Attorney (HCPOA), you may designate an agent to make medical decisions for you if you are unable to do so. You must be legally competent to sign the HCPOA, but it remains in effect even if you later become legally incompetent. When is the HCPOA Triggered? The HCPOA becomes effective when an adult “lacks sufficient understanding or capacity to make or communicate decisions relating to [his or her] health care.” [1] You can choose the physician(s) that you trust to determine whether you are unable to make or communicate your healthcare decisions. The Agent’s Authority Your Health Care Agent makes decisions based on what you direct in your HCPOA. The default is to allow your agent to make any and all medical decisions for you. But it is your job to set any limits, restrictions, requirements or special conditions. Like any fiduciary, a trusted person given the ability to act on someone’s behalf, the agent must act in good faith when carrying out your instructions. Setting Limits in Your HCPOA General Health Care Decisions. Choose whether your agent has access to your medical records, can hire and fire medical providers, and the right to place you in, or release you from, a hospital or other facility, such as assisted living or nursing home. Mental Health Care. Authorize or prevent certain mental health treatment, such as psychoactive medications or shock treatment. Consider whether the agent can admit you to, or keep you in, a mental health facility, and if so, your preferred facility. The state can always keep you in a facility based on civil commitment laws, for example danger to yourself or others. Life Prolonging Measures. This is your right to a natural death. [2] Choose whether to allow or withhold life prolonging measures, such as a mechanical ventilator, artificial nutrition (i.e., feeding tube) or artificial hydration. Most people want “reasonable steps to keep me as clean, comfortable, and free of pain as possible so that my dignity is maintained, even though this care may hasten my death.” You can say that some/no life prolonging measures will be given in the following situations, described in that statute: An incurable or irreversible condition that will result in your death within a relatively short period of time; or You become unconscious and, to a high degree of medical certainty, will never regain consciousness; or You suffer from advanced dementia or any other condition resulting in the substantial loss of cognitive ability and that loss, to a high degree of medical certainty, is not reversible. Matters of Death. If you don’t already have valid arrangements when you die, the agent can request an autopsy or even dispose of your remains (i.e., cremated or buried). You may or may not want to donate any needed organs or parts, or to donate your body. See the NC Donor Registry for information about donating. Adding Things to Your HCPOA Add what’s important to you. You can identify welcomed visitors at any facility where you might be. Naming a legal guardian to care for you if you are unable to do so might avoid litigation among family members about who should serve, and whether to require bond. How Long is the HCPOA Effective? It ends when you revoke it or die, unless you authorize him or her to do other tasks related...

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New: Links For Senior Citizen Resources

Posted by on Sep 14, 2018 in Blog, Elder Law, Elder Law, Estate Planning and Asset Protection, Resources | 0 comments

New: Links For Senior Citizen Resources

Links For Senior Citizen Resources Great Overview Sites: Good starting point and overview is the Senior Citizens Handbook: Laws and Programs Affecting Senior Citizens in NC (The Young Lawyers Division of the NC Bar Association)  See also the National Caregivers Library Other Good Sites: • AARP (American Association of Retired Persons)  • See our law firm Pinterest board for caregiving • Tips For Extended or Frequent Hospital Visits • Eldercare Directory of Federal Gov’t Programs for Seniors, including reverse mortgages • Seniors Health Insurance Information Program (SHIP) for NC • Social Security Medicare Benefits • Social Security Retirement Benefits • Library of Congress Resources for Senior Citizens and Their Families • Pitt County Council on Aging Services – and Pitt County “Resource Guide For Older Adults“ • NC Department of Justice: Help for ID theft • NC Dept. of Aging and Adult Services Assistance (scroll to the bottom)...

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The Trial: A Chaotic Experience

Posted by on Aug 28, 2018 in Blog, Court, Family Law | 0 comments

The Trial: A Chaotic Experience

The Trial: A Chaotic Experience No matter how prepared you and your attorney are, the days before a trial are frantic and stressful. A good case can be like a work of art. At first glance, it can look flawless but when you stand back and tilt your head, there are always a few more minor adjustments to be made before it is seemingly perfect. But trials are not perfect. Nor are they a color-by-number picture with a beginning and an end brightly mapped out. Instead, trials are organic. How are Trials Organic? Trials are organic because they take on lives of their own. After the first hour or two in the courtroom, a rhythm usually develops, which can offer a little more comfort. Trials are never what you (or your attorney) expect. Perhaps they will be better or worse, but they rarely stick to the script. Human nature means life is fluid . . . and messy. Because life doesn’t have a pause button, new events are constantly taking place right up to the day of the trial. The Human Factor No two trials are the same, nor are they made up by the same cast of characters or backdrop. Besides the fear of the unknown, the parties have the pressure of court staring them in the face. Stress and tempers can flare between the plaintiff and the defendant. Last-minute blow-ups between the parties and extended family members can impact the direction of the trial too. One or both of the attorneys might be completely unaware of some major problem that just unfolded on the day before court. The script is sometimes scrapped early in the trial because of the unexpected testimony of a witness or two. In that event, your attorney must improvise, playing it by ear. The Attorney Approaching trial dates can cause people to reconsider whether they want to attempt settlement. It is common for clients and their attorneys to be in touch with the opposing party all through the late evening on the eve of court. While the attorneys are tending to last minute details of trial preparation, if their clients want to negotiate and settle the case, they might draft the settlement documents at the same time with the hope that their time has been well-spent and that the parties will sign it the next morning. Time is a luxury most attorneys don’t have. We might have two or even three trials back to back, a problem over which we have little if any control. In the meantime, preparing witnesses to testify too early means they’re more likely to forget what they discussed with the attorney, so last-minute calls to witnesses are the norm. Everyone Else It is a good idea to have friends and/or family with you in court for moral support. They have the best intentions but sometimes they insert themselves between you and your attorney, interrupting your huddle and distracting us from communicating during a quick 5-minute break. A main pet peeve judges have is the reactions of those in the courtroom. The attorneys are facing the judge at the front of the room, so they can’t see what happens behind them. There is often drama in the courtroom in family law cases. Loved ones sometimes roll their eyes, huff, shake...

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What Do All Those Child Custody Labels Really Mean in NC?

Posted by on Aug 19, 2018 in Blog, Child custody, Child support, Family Law | 0 comments

What Do All Those Child Custody Labels  Really Mean in NC?

What Do All Those Custody Labels Really Mean? Physical Custody By Amy A. Edwards  See also – Legal Custody Physical Custody In this article, we focus on physical custody and visitation.Our state deems physical custody to mean “the physical care and supervision of a child.” NC Gen. Stat. §50A-102(14). The NC Child Support Guidelines identify primary physical custody as the custody a parent has when he or she spends 243 overnight visits per year with that child. The other parent has secondary physical custody because he or she has 122 or fewer overnights. In that case, child support is the same amount no matter what the custody schedule is. But if a parent has 123 or more overnight visits per year, a different calculation is used. Depending on the exact number of overnights per year, the child support obligation changes on a per-day basis. Physical or Legal Custody? The Guidelines are careful to note that primary physical custody is determined without regard to whether a parent has primary, shared, or joint legal custody (decision-making custody), which is the right to make significant long-term decisions, such as a child’s religious training or the school a child will attend. Contrast that with physical custody, which involves the day-to-day decision-making such as what bed-time is best or how much time a child may spend using social media on a school night. Visitation With a Child Our state fails to clearly define visitation, stating that: Unless a contrary intent is clear, the word custody shall be deemed to include custody or visitation or both. The Court of Appeals wrote that “Visitation privileges are but a lesser degree of custody. Thus . . . the word custody . . . was intended to encompass visitation rights as well as general custody.” NC Gen. Stat. § 50-13.2(b1) But the statute specifies who cannot have visitation. If a person conceived a child by acts of various sexual assault laws, he is not entitled to visitation rights. On the other hand, grandparents may file a case visitation, not custody of any sort. However, they may seek visitation only if there is an on-going custody battle already pending in court. This avoids the significant stress and cost of litigation which could otherwise be inflicted upon the parents by a third party. What About Technology?  Judges in North Carolina may award “electronic communication” with a parent. To allow a fluid and meaning as technology changes, the law envisions “contact, other than face-to-face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication.” However, the statute is quick to add that these communications “may be used to supplement visitation . . . but . . . may not be used as a replacement or substitution for custody or visitation.” Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of 2018. www.AmyEdwardsFamilyLaw.com©...

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Is a 529 College Savings Plan a Gift to a Child or Marital Property?

Posted by on Aug 9, 2018 in Blog, Child support, Equitable Distribution of Marital Property and Debt | 0 comments

Is a 529 College Savings Plan a Gift to a Child or Marital Property?

Is a 529 College Savings Plan a Gift to a Child or Marital Property? By Amy A. Edwards Yesterday, the NC Court of Appeals addressed this question in Berens v. Berens. This was a case of first impression, meaning our courts have not yet made any decision on this subject. The Court defines 529 plan as “investment programs permit parents to set aside money for their children’s college expenses under tax-favorable conditions.” In the Berens case, the parents funded several 529 plans for their children while they were married and before they separated. The First Trial: Marital Property The lower court said the funds in the plans were marital property, and then awarded them to Mom as marital assets. She disagreed with that, and appealed the case, arguing that the money invested in the plans were gifts to each child, not marital property. And therefore, the court had no jurisdiction over the plans because they were not marital property. The Court of Appeals disagreed with her. The Appeal: Marital Property In this particular case, the Court of Appeals said the funds were not gifts to the children because they were all in Mom’s name alone. Besides the intent to give the gift to someone, a gift is only a gift if it is actually given to someone. Here, Mom failed to give a gift because no child was a named owner. Had the plans been gifts, each child would’ve had “all right, title, and control over the property.” Just because a 529 plan gives an owner a special tax benefit doesn’t mean it changes ownership. Although each child was a beneficiary, the plans were still owned by Mom. Therefore, she had the ability to spend the funds in any way see saw fit.  Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of...

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Clients and Attorneys Going in Different Directions: Marital Fault or Bad Behavior by the Other Parent

Posted by on Jul 28, 2018 in Blog, Family Law, Working with your lawyer | 0 comments

Clients and Attorneys Going in Different Directions: Marital Fault or Bad Behavior by the Other Parent

Clients and Attorneys Going in Different Directions:  Marital Fault or Bad Behavior by the Other Parent In the Beginning . . .  By the time someone talks with an attorney about a divorce or a custody case, it is safe to say that it isn’t because something great just happened. Most people are struggling to make sense of what has just happened to them, or what finally became the last straw. Clients are devastated, shocked, angry, traumatized and anxious to vent about how the other person has betrayed and hurt them. Each case is unique but this article is a general response to a common question that clients ask me: Why are we worrying about this [insert something that’s tedious and dull] when I can prove my ex did [insert something that’s awful and life-changing]. What’s Your Attorney Doing? Meanwhile, after you have bared your soul to the attorney and handed a check or credit card to the receptionist, the attorney and his or her staff members are doing lots of busy-work.  All they appear to be doing is wasting time, filing court paperwork, gathering tons of financial records, drafting financial affidavits (budgets for court), listing details of property and debts, and perhaps doing discovery and then mediation. Clients quickly become disappointed and frustrated once they discover that fault and bad behavior won’t usually be addressed in depth until after all of that is completed, and then a trial. Unfortunately, it can easily take a year after you start the court process for a judge to make the final ruling on your case.   What Are Your Attorney’s Priorities? It might seem like your attorney isn’t really listening to what’s important to you, or that his or her goals appear to be at odds with yours. This legal process is backwards in the sense that clients have to deal with serious emotional turmoil and upheaval at the beginning of a case, but your attorney must work with an eye towards the end of a case. This means that the attorney might have to set aside what’s right and wrong at the beginning of a case to start building a foundation for the case before reaching those matters. One of the hardest lessons I learned upon my arrival at law school was that courts don’t dole out justice. In fact, they usually don’t focus on justice. Instead, courts apply the law to the facts of each case. The law must be your attorney’s priority. Attorneys have a duty and obligation to take a step back and look at the situation objectively, the way a judge would, to tailor your case to what a (neutral) judge expects to hear from us about key issues. Approaching your case based on our feelings would be dangerous for your attorney. Instead, we try to analyze the situation while staying cool, calm and collected. In fact, a good attorney might be saving you time and money by negotiating a settlement on who keeps what property/debts, or what the children’s visitation schedule will be instead of beginning with fault and who is right or wrong. What Are Your Priorities? I’ve had clients who want to be vindicated by showing that the other person has been unfaithful, wasted money, was abusive, or done any number of other bad behaviors. Expressing their feelings in a trial can be a cathartic and liberating experience. Or, if...

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My Ex Is Using the Attorney That I’m Paying For!

Posted by on Jul 19, 2018 in Blog, Relationships, Working with your lawyer | 0 comments

My Ex Is Using the Attorney That I’m Paying For!

My Ex Is Using the Attorney That I’m Paying For! By Amy A. Edwards The Attorney Client Relationship Clients can be resentful that their attorney is wasting time dealing with the pro se person. In most family law cases, each person has an attorney. When the other person is pro se, Latin for representing himself or herself, lawyers aren’t working for the pro se person and charging you for it as clients sometimes think. That is prohibited. An attorney may represent only one person in a family law case, such as a divorce or child custody case. Failure to do that is usually a conflict of interest. That means what is good for one person might be a bad thing for the other person. For example, if one spouse gets alimony that’s a good thing for him or her, but it is might be a bad thing for the other spouse. The lawyer has to choose one person or the other as a client. What’s Different? If your ex had an attorney, your attorney would have to talk with the other about settlement, discovery (documents, etc.), trial matters, and logistics of court events such as depositions. In other words, your attorney would still be taking time to talk with the other attorney. It doesn’t always take more time than it would to negotiate with an attorney. In fact, some people without attorneys are anxious to get down to business instead of posturing the way other attorneys will because they want to avoid court. The Law and Equality The law requires everyone to be treated in the same way, regardless of whether they have an attorney or not. The same deadlines, rules, laws and other requirements apply to both sides. In the eyes of the law, people shouldn’t be penalized if they cannot afford an attorney. But the judge is still bound by the law. Judges have to walk a fine line in these cases. Attorneys also have to be very careful when communicating with a pro se person. We certainly can’t give them legal advice but sometimes we do explain the reasons why the offer we are making on behalf of our client is a good one. Depending on the circumstances, the attorney will tell the pro se person that he or should talk with an attorney. Same Rules as Everyone Else But . . . Attorneys have specific things they need to prove in court, based on what the law requires in each situation. But in court, judges sometimes give pro se people a little leeway when they testify and present their side of the case because if they were held to a strict standard they probably wouldn’t be able to say much at all. More often than not, the pro se person usually just wants the judge to hear what they want and why they want it. In a democracy, it is important for all citizens to have the right to their day in court. It’s especially important for parents who are in child custody cases to be heard because the judge must award child custody to one or both parents based on what the judge believes is in the child’s best interest, regardless of whether the parent is represented by an attorney. Amy A. Edwards is a...

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What Do All Those Custody Labels Mean? Legal Custody

Posted by on Jul 9, 2018 in Blog, Child custody, Court, Family Law | 0 comments

What Do All Those Custody Labels Mean? Legal Custody

What Do All Those Child Custody Labels Really Mean? (Part 1 of 2) This article focuses on legal custody. Parents will fight tooth and nail about what kind of custody each of them should have. They are extremely concerned about the term custody. There are many parenting labels including visitation, joint custody, sole custody, physical custody and legal custody. Our state statute doesn’t help much. In fact, it probably creates more confusion. NC Gen. Stat. §50-13.1(a) states: Unless a contrary intent is clear, the word “custody” shall be deemed to include custody or visitation or both.” However, our case law and the NC Child Support Guidelines do give us more details about those labels. I’ve tried to avoid legalese, but some of it is inevitable. Our Changing Values  Unlike some states, our state law doesn’t start by assuming that any particular type of custody will exist. But a few years ago, it came just shy of it when the state policy was written to promote “child-centered parenting . . . and encourage . . . court practices that reflect the active and ongoing participation of both parents in the child’s life and contact with both parents when such is in the child’s best interest…” NC Gen. Stat. §50-13.01. This was significant because it wasn’t too many years ago that courts almost automatically gave moms custody of young children. The now debunked law of traditional custody, called the Tender Years Doctrine, assumed young children of tender years should be with their mothers if at all possible. Now, if either parent requests joint custody, the court is legally obligated to consider it. NC Gen. Stat. §50-13.2(a). Legal Custody (Parenting Decisions) Legal custody is decision-making custody, the right to make significant long-term decisions that impact a child’s life and welfare, such as a child’s education, health, medical care, discipline, and religious training, to name a few. Contrast that with physical custody, the day-to-day decision-making such as what bed-time is best or how long a child may spend on social media on a school night. There are three types of legal custody. Joint Legal Custody The trend these days is to award joint legal custody to parents, meaning that both parents equally share the decision-making. Ironically, when parents share joint custody, neither parent can veto the other, so neither parent really has any more rights to make a decision than the other. But, the system of checks and balances provides some incentive for decent behavior. If one parent acts badly or makes poor decisions, he or she may have to account for it on the witness stand at some future date if the other parent files a motion for the court to intervene and have a judge decide what must be done about the disagreement.  Sole Legal Custody On occasion, a judge will award sole legal custody to one parent. If the dispute is about which school a child should attend, for example, the parent with sole legal custody makes the final decision. However, judges usually expect the parent with sole legal custody to discuss the controversy with the other parent. But if they still can’t agree, he or she makes the decision. Until a child reaches the age of 18, either parent has the right to file motions asking the court to address any serious dispute, which usually is done by a motion to modify the custody order. “Split” Joint Legal Custody Although it is...

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21 Divorce Experts All Share Their #1 Tip

Posted by on Jun 23, 2018 in Blog, Family Law | 0 comments

21 Divorce Experts All Share Their #1 Tip

    21 Divorce Experts All Share Their #1 Tip We’re excited to share this article, in which Ms. Edwards is featured as #16 ...

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Contempt of Court in North Carolina

Posted by on Jun 8, 2018 in Blog, Court, Family Law | 0 comments

Contempt of Court in North Carolina

Contempt of Court in North Carolina When someone violates a court order, the other person can file a motion asking the court to hold him or her in contempt. In family law, judges enter orders for child custody and support, alimony and marital property division, among others. Our statutes define the way a judge can require people to obey court orders, up to and including incarceration. There are two kinds of contempt, civil or criminal. Civil Contempt After the judge determines the order is valid and still in effect, a judge must be certain the “purpose of the order may still be served by compliance with the order.” NC Gen. Stat. §5-21(a). To enforce an order by civil contempt, someone must willfully fail to comply with the order. He or she must have the ability to comply or take reasonable measures that would enable the person to comply. For instance, if you are required to pay child support by court order but you are in a bad vehicle accident and unable to work some period of time because you were in the hospital for a month, you might be able to prove you were unable to comply with the order. That doesn’t mean the judge will cancel or reduce the child support obligation. It just means that the order is not being enforced by holding you in contempt and incarcerating you. There are other ways people can enforce orders. Incarceration For Civil Contempt The purpose of civil contempt is not to punish someone as is the case with criminal contempt. Instead, the purpose of incarceration is to force the person to comply with the order. If a parent owes back child support, he or she is taken into the custody of the sheriff until the payments are made. The judge must order certain release conditions called “purge conditions” because doing those things will allow the person to purge or rid himself or herself of contempt. It is said that in civil contempt, the person incarcerated holds the keys to the jail because all he or she has to do is comply with the order. The person refusing to comply with an order of the court may be initially incarcerated up to 90 days. If there is no compliance, the judge will have another hearing at the end of the 90 days. The maximum time of incarceration for civil contempt is one year. NC Gen. Stat. §5A-21(b2). Because the violator faces incarceration, the court will usually offer to appoint an a9orney if the person can’t afford one. Criminal Contempt Instead of holding the keys to the jail, the purpose of criminal contempt is punishment. This is what people usually think of when contempt comes to mind. NC statutes list plenty examples of bad behavior, all of which must be willful and usually in the courtroom. These include interrupting court proceedings, disrespecting the judge, disobedience or interference with a court’s order or directive, refusing to answer a question on the witness stand or refusing to be sworn in (of affirmed) to testify. Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as...

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