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FIDUCIARY LITIGATION

Trustees and Attorneys-in-fact have a fiduciary responsibility to the beneficiaries and principals they serve. Where that duty is breached, we represent individuals damaged as a result of that breach. We can also represent Trustees and Attorneys-in-fact who are being sued for allegedly breaching their duty.

To learn more about how Booth Harrington & Johns of NC PLLC can assist you or a loved one with Fiduciary Litigation matters, please contact us toll free at 877.503.5337 or request a consultation with one of our associates by clicking here.

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TRUSTS LITIGATION

 

 

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GUARDIANSHIP LITIGATION

Guardianship is the most severe form of judicial intervention under civil law, excepting only involuntary commitment. Because of the drastic nature of guardianship, our firm takes very seriously the need for dedicated, caring advocacy in the establishment and administration of guardianships or conservatorships. Our firm also has significant experience in litigating the offensive or defensive positions in the adversarial process. Our involvement in the guardianship process is in various ways:

• When a person's diminished capacity requires formal court guardianship, we can counsel the family about the legal issues involved and start the guardianship process to determine the need for a guardian and get one appointed.

• At times, we represent persons who are opposed to the proposed guardianship. In those situations, the guardianship process becomes an adversarial proceeding, in which we will seek to prove to the court that a guardianship is not appropriate.

• We represent family members who agree that a guardianship is appropriate, but who do not agree with the proposed choice of guardian by the court. In those types of contested guardianship appointments, our firm advocates for our client's ability to best serve the incompetent person's interests as the best choice as guardian.

• After the guardianship has been established, we advise individual and corporate guardians concerning their powers and responsibilities in administering the guardianship estate.

We represent clients on all sides of Guardianship Litigation matters. We can serve as counsel to the petitioner, counsel to the respondent, or as guardian ad litem. Please contact us toll free at 877.503.5337 or request a consultation with one of our associates by clicking here.

 

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POA / ADVANCE DIRECTIVE LITIGATION

Appointing an attorney-in-fact under a durable power of attorney is usually the best way to provide for management of assets and property in the event of incapacity. A power of attorney (POA) is a written authorization appointing an attorney-in-fact, or agent, to act on behalf of another, who typically is referred to as the "principal." All fifty states and the District of Columbia have passed laws permitting a person to appoint, in writing, an attorney-in-fact whose authority will not terminate when the principal becomes incapacitated or incompetent. This is known as a durable power of attorney.

For effective advance planning, attorneys almost uniformly counsel and prepare broad comprehensive POAs which grant to the agent expansive powers and authorization to do practically anything for the principal that the principal can do for himself. Obviously, the overarching principle in all decisions to appoint someone as attorney-in-fact is that the maker of the power of attorney has consummate trust and confidence that the person appointed will exercise good judgment and act only in ways that serve the best interests and wishes of the person who has entrusted them such staggering authority.

North Carolina POA Requirements:

• Written
• Notarized
• By mentally competent person

An agent is accountable for his/her actions as POA. Therefore, an agent serving under a durable POA must maintain records of receipts, disbursements and transactions after the principal's incapacity, unless the power of attorney waives the requirement. Many POA's are fully effective without being recorded at the Register of Deeds office; however, there are two important caveats: a) A POA must be recorded after the principal's incapacity to maintain its effectiveness, and b) Real estate transactions require that the POA authorizing them be recorded in each county where land to be transferred is located as well as in the principal's home county.

In North Carolina, for a power of attorney to be durable (that is, to continue to be effective beyond the incapacity of the principal, or maker, of the power of attorney), the document must state that it is durable or remains effective despite the principal's later incapacity.

Gifts Under Power Of Attorney:

In most states, and in North Carolina, the attorney-in-fact does not have the authority to make gifts of the principal's assets, unless the document expressly authorizes such gifts. While gifting provisions in a power of attorney undeniably create the potential for unfair advantage or abuse, still, broad gifting powers can be critically important to advancing the principal's best interest. Without gifting powers, the agent may be hamstrung from honoring important charitable commitments, pledges or projects which hold the principal's special favor. Without gifting powers, the agent may not be able to implement tax and estate planning strategies. Without gifting powers, the agent may be prevented from implementing planning strategies to qualify the principal for assistance benefits through Special Assistance for assisted living residents or Medicaid for nursing home patients.

POA - Advantages Over Guardianship:

Many believe that a durable power of attorney is only important to assist the elderly. But what about the young adult who suffers a head injury skiing, biking or in an auto accident? Or, the middle-aged dad, the picture of health, who survives a brain aneurysm? If a person who has not signed a durable power of attorney becomes incompetent, then someone, either a family member or some other interested party, may have to file an incompetency proceeding in order to have the client declared incompetent and have a guardian appointed. There are several reasons that, in most instances, a durable power of attorney is significantly preferable to guardianship:

Expense - The process of having a family member declared incompetent and having a guardian appointed is expensive, both in financial and emotional terms.

Flexibility - Acting under power of attorney is generally much more flexible than guardianship requirements. A guardian must: (1) petition the court before certain disbursements may be made from the guardianship funds, (2) obtain court approval to sell certain assets, and (3) file annual accounting reporting receipts and disbursements. An attorney-in-fact, however, is typically relieved of such reporting requirement.

Privacy - A guardianship file is a matter of public record. A recorded POA is a public document, but there usually is no need to report publicly all of the activities and transactions occurring by the POA.

Agent selection - In guardianship, the principal has no say or control over who will serve the authority of the agent. The identity and authority of the agent are controlled by state law in a guardianship arrangement.

Short-Form POAs/Hazardous Short Cuts

N.C. Statutes contain a "Statutory Short Form Power of Attorney." The form itself is printed in the statute. The form provides for 15 specified powers ranging from real property transactions to safety deposit box access, insurance transactions, and tax matters, just to name a few. The short form can be copied directly from the statute with choices initialed for each power to be granted. Unfortunately, however, the short form is a short cut which can be shortsighted.

Most people do not understand that the gifting powers available in the statutory short form are each specifically defined in the statute. Under this law, authorized gifts to charities and individuals are restricted to only those gifts made "in accordance with the principal's personal history of making or joining in the making of lifetime gifts." So, if the person who is using the statutory short form power of attorney has never established any personal history of making significant lifetime gifts, the gifting sections in the statutory short form are completely useless. Furthermore, even if the principal has established a personal history of lifetime gifts, perhaps to take advantage of the annual gift tax exclusion, still, the power of attorney agent would be limited to making gifts in those amounts. These limitations may effectively tie the hands of the agent who is ready and willing but unable to help with necessary planning.

Health Care Power Of Attorney:

Entirely separate and apart from the General Durable Power of Attorney, which deals mainly with financial and transactional matters, is the Health Care Power of Attorney ("HCPOA"). The statutory requirements for the format and proper execution of a health care power of attorney are quite different from the general durable power of attorney, which only requires a notarized signature. By contrast, health care powers of attorney must not only be signed by the principal in the presence of a notary, but must also be witnessed by two independent witnesses. People are disqualified to serve as witnesses who are: related to the person by blood or marriage, heirs at law, named beneficiaries under the will, health care providers or employees of a hospital, doctor or other health care provider.

As long as the person who has executed the HCPOA is competent, aware and capable of expressing their own desires for medical care and treatment, the care providers will seek and honor their decisions. On the other hand, when a patient is comatose, heavily sedated, demented, confused or otherwise unable to competently make and express decisions about their care, it is a matter of great importance that some trusted person has been designated and vested with appropriate authority to speak for the patient.

Obviously, an HCPOA is not just for the elderly. Young and old alike who are putting plans in place should be strongly encouraged to make choices available to them in a HCPOA and a "Living Will." The trials, tribulations, pathos, expense, notoriety and anguish of Terri Shiavo and her family can at least be vastly diminished and usually eliminated altogether by appropriate advance planning. There is no requirement that a HCPOA be recorded in the Register of Deeds’ office. A recently enacted amendment to our statutes, N.C.G.S. 130A-465 et. seq., now permits a person to register his health care power of attorney with the North Carolina Secretary of State. The filing fee for registration is $10, but there is no fee for filing a revocation.

Declaration Of A Desire For A Natural Death - "A Living Will"

The term Living Will is common parlance for a written document by which the signer makes a declaration of a desire for a natural death. The legal requirements for signing, notarizing and independent witnesses are exactly the same as those for the health care power of attorney.

The Living Will does not appoint a health care agent. Instead, it is a binding document that evidences decisions made which can address two situations:

When the declarant is terminally ill and incurable

When the declarant is in a persistent vegetative state

In each of those situations, the person can select the first option of only withholding or discontinuing extraordinary means, such as calling in the crash cart if the heart stops, placing someone on a ventilator or starting dialysis. The basic decision represented here is to let nature take its course and not to employ extraordinary means to prolong or restart life that is ending.

A second choice provided by the statute for each situation is the choice of withholding or discontinuing artificial feeding or hydration in addition to withholding or discontinuing other extraordinary means. The notion here is this: "If I can chew the food, sip the drink, and swallow, then I will take food and water. However, if I cannot, then do not keep me going with stomach tubes and IVs."

Obviously, if a client is of the mindset that unexpected medical breakthroughs and miraculous healing can happen any time, and that any and every available treatment should be tried, then they would have no interest in a Living Will.

A practical tip: We do not encourage our clients to keep Living Wills and HCPOAs in a safe deposit box at the bank. If a stroke occurs at 6:15 on Friday evening, needed documents would be inaccessible until 9:00 Monday morning. We encourage people to share copies of the documents with loved ones, and let them know where the originals may be found.

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FACTS ABOUT ELDER ABUSE

Abuse and neglect of residents of nursing homes and other care facilities have become a widespread problem. While most nursing homes provide good care, some subject helpless residents to needless suffering and death. By taking legal action we help families to:

Force the care facility to pay attention to concerns about substandard care

Seek remedies for serious injury or death resulting from failure to meet the expected standards of care and State and Federal laws

Effects Of Substandard Care
 
Federal and State laws require nursing homes to develop a plan of care for each resident, and to employ sufficient staffing to follow that care plan in all respects. Too often, nursing homes today are not sufficiently staffed and cannot provide ALL the care listed on the care plan. Consequently, residents may suffer when they:

Are not taken to the toilet when necessary, often left lying in their waste

Develop painful and life threatening pressure sores (decubitus ulcers)

Are not turned

Are not fed properly

Are not given sufficient fluids

Are over-medicated or under-medicated

Are not protected from falls, causing painful bruises and broken bones

Are not cleaned or groomed

Are ignored and not included in activities

Are left in bed all day with call lights not being answered promptly or not at all

Are being otherwise neglected

Beyond this type of neglect, there are instances of even intentional abuse resulting in serious injury and even death to residents of nursing homes throughout the United States.
  
The tragedy of this is that most residents in nursing homes depend on the staff for most or all of their needs such as food, water, medicine, toileting, grooming, stimulation and turning - almost all their daily care. Too many residents in nursing homes today are starved, dehydrated, over-medicated, and suffer painful pressure sores. Isolated and ignored, they are deprived of social contact and stimulation. When owners are more concerned about profits than resident care, the care givers are often overworked, grossly underpaid, and lack necessary training. This can result in rude and abusive behavior to vulnerable residents whose basic needs for water or bathroom care are often ignored.

There Are Legal Remedies Available - When civil lawsuits are filed against nursing homes, claims typically include:

Negligence ("medical malpractice" and otherwise)

Intentional misdeeds

Fraud

Violations of applicable laws and regulations

Violations of patients' rights

Unlawful, unfair and fraudulent business practices

Legal Definition Of Abuse And Neglect - Abuse and neglect in a nursing home includes the following (taken from the North Carolina Elder Abuse statutes):

Assault

Battery

Sexual Assault

Rape

Unreasonable physical constraint, or prolonged or continual deprivation of food or water

Use of a physical or chemical restraint or psychotropic medication for any purpose not consistent with that authorized by the physician

Neglect means the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care which a reasonable person in a like position would exercise. Neglect includes but is not limited to:

Failure to provide food, clothing, or shelter

Failure to assist in personal hygiene

Failure to provide medical care for physical and mental health needs

Failure to protect from health and safety hazards

Failure to prevent malnutrition

Elder Abuse Litigation:

In conjunction with our nursing home litigation, we also litigate elder abuse in other contexts. We seek to help older or disabled adults, their families and friends resolve problems and recover monies and property lost to commercial exploitation and misconduct of fiduciaries, caretakers, family members and others. We work closely with our client and his/her advisors, including other attorneys, financial advisors, healthcare professionals, clergy and others to achieve the client's goals. Please contact us toll free at 877.503.5337 or request a consultation with one of our associates by clicking here.

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