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Thinking about the future is one of the most challenging aspects of life. Planning for the unknown may seem overwhelming when considering the myriad of issues arising from death or disability. But, there is comforting news. If you take the time now to plan properly, you can address finances, family, business, taxes, and health care in one coordinated strategy. That strategy is an estate plan. Whether basic or complex, an estate plan can provide you with security.

The grief experienced by family members when a loved one is sick or has died is difficult to endure. The additional worries of health care or financial decisions, and the related confusion and potential for conflict among family members, can add an unbearable level of strain – strain which can be minimized through a properly arranged estate plan. It is a wise and caring person who takes the proper steps now, rather than leaving important decisions to unprepared family members and/or the default treatment mandated by state law.

What can an estate plan accomplish? Even the most basic estate plan can:

^ Identify your health care wishes and ensure they are carried out;

^ Plan for incapacity;

^ Decide who is to receive your assets;

^ Direct property quickly to the desired beneficiaries;

^ Minimize or eliminate estate and probate expenses;

^ Select guardians for your minor children;

^ Create a legacy for your children and grandchildren;

^ Reduce or eliminate taxes on your estate;

^ Ensure the continuity of your family-owned business; and,

^ Allow for peace of mind knowing your desires will be followed.

^ Should you become disabled or incapacitated, your health and financial decisions are made under the default rules of North Carolina law and any decisions made by the courts based upon those laws.

^ North Carolina law dictates how and to whom your property and assets will be distributed.

^ If you have minor children, their future care and custody are decided solely by North Carolina courts.

^ If you are an unmarried couple living together in North Carolina, your surviving partner will receive none of your assets.

There are several components necessary to accomplish the range of objectives outlined above. An estate plan is generally comprised of four basic instruments:

A Last Will & Testament allows you to determine what happens to your property when you die. Contrary to common belief, all of your property does not automatically go to your spouse under North Carolina law – a Will is necessary even if your desire is that simple. A Will allows you to specify who receives your property, and what they will receive. A Will may not control every type of property you own. For example, property that is subject to “rights of survivorship or control,” which do not terminate at death, is not directly controlled by your requests in the Will. Some contract-based investment assets, such as life insurance, 401(k), and annuities, will not be controlled by your Will unless they are specifically addressed.

A Will is also the best place to name a guardian for any minor child for which you have legal responsibility. A basic Will can also provide for a trusted individual or corporate advisor to properly manage assets left for the benefit of a minor child.

In a Financial Power of Attorney, an individual is given the legal authority to conduct your financial affairs should you become incapable of doing so. The person is your “attorney-in-fact” or “agent.” The actions of your attorney-in-fact are deemed to be your actions. Your attorney-in-fact can manage your finances and help avoid credit problems or the loss of valuable assets.

A Health Care Power of Attorney gives an individual the legal authority to make health care decisions for you. A proper Health Care Power of Attorney will also give your agent the right to receive and review medical information about you. Health Care Powers of Attorney have become increasingly popular, and necessary, since the Health Insurance Portability and Accountability Act (“HIPAA”) was enacted in 2003. HIPAA restricts medical providers from releasing patient information to unauthorized persons. Without a properly drafted Health Care Power of Attorney, your loved ones may not be able to control your medical care, or even find out the status of your health.

A Living Will is a declaration of your personal choices regarding life-prolonging medical treatments or procedures. A Living Will is commonly referred to as an “advance directive,” a “health care directive,” or a “physician’s directive.” This important document informs your health care providers and family of your desires when you are unable to speak for yourself. Living Wills are often used to make clear you desire to die a natural death and not be kept “alive” through extraordinary means.

To be valid, your estate plan must be formalized according to the laws of North Carolina. Minor deviations from technical requirements could make a homemade Will unenforceable. The North Carolina Secretary of State provides a registry for both Health Care Powers of Attorney and Living Wills. Registering these documents ensures that your health care directives can be located by your family and medical providers. Consultation with a qualified attorney is generally advisable to ensure that your estate plan is set-up in an optimal manner.
The word “plan” in estate planning cannot be overemphasized. Through a valid, effective estate plan, you and your family can be best prepared for the future – but only if you plan…and plan now!

Each year, thousands of couples decide to adopt a child. Increasing numbers are pursuing international adoption. Because adoption can be a complex and lengthy process, an experienced lawyer can help. What follows is a discussion of many of the basic aspects of adoption, and how a lawyer can guide clients throughout the adoption process.

I’m ready to adopt – now what?

Parents seeking to adopt must decide whether they prefer an independent adoption or an agency adoption. Adopting parents should also weigh the benefits and drawbacks of domestic versus international adoptions. Open adoption is another consideration. In an open adoption, the identities of the birth parents and adopting parents are freely available, and often both sets of parents will maintain an ongoing relationship with each other and the child.

If adopting parents decide to use an agency, they should obtain references and interview several agencies before selecting one. It is important to ask about fees, the average length of time an adoption takes, and what the agency will expect of them. Adopting parents must also make sure that the agency is licensed. Adopting parents living in North Carolina are not required to use a North Carolina agency, but certain steps will need to be completed in North Carolina.

In the United States, newborns are more often placed through an independent adoption. While the reasons are unclear, cost savings may be a factor. If adopting parents decide on an independent adoption, they will need an adoption attorney to guide them through the process.

How do I find a child to adopt?

Parents seeking to adopt may begin their search for a child in a number of places. There are adoption agencies throughout North Carolina and the United States that will help match adopting parents with a child. Some of these adoption agencies may handle international adoptions, as well. Alternatively, parents may choose to locate their child without the assistance of an agency. Typically, birth parents are located by word of mouth and advertising in appropriate journals, newspapers, and other media. An adoption lawyer can work with the parents to create a comprehensive strategy for locating a child. Although an adoption lawyer may not solicit a particular child for adoption, he will help create the adopting parents’ profile to send to birth parents, and will walk the clients through the process of interacting with the birth parents. He may also direct them to reputable adoption agencies or informational support groups.

What is home study?

Home study, also known as pre-placement assessment, is the process by which adopting parents are evaluated to ensure that they are fit to care for the child. During the home study process, an agency licensed by the state will collect information about the adopting parents’ family, medical history, financial resources, criminal background, and parenting goals. The objective of the home study is simply to gather the information necessary to confirm that each adopted child is placed in a caring environment.

At least one home visit is conducted during this process. During that time, the agency typically will take a brief walk through the adopting parents’ home and look at their neighborhood to make sure that it is an appropriate environment for a child. Although the idea of home study often makes adopting parents nervous, it is usually less difficult than most people think. Parents are often delighted to find that they are not expected to be perfect, just caring and suitable.

For international adoptions, home study works essentially the same way. In a typical international adoption, home study must be conducted in the state where the adopting child will reside. Home study may be conducted by any person licensed or authorized by the state to do so. There are several immigration requirements to an international adoption, such as travel, entry, and naturalization. Home study is one prerequisite to allow for immigration processing in advance of travel related to bringing a child to the U.S.

After an adoption occurs, a similar post-placement meeting is conducted to follow up and see that the family is adjusting well.

What are the risks of adoption?

All adoptions bear some risks, whether emotional, medical, or financial. Adopting parents should be realistic when analyzing the risks, but resist losing a positive outlook. Adoption is ultimately a rewarding experience, and the inherent risks should be kept in perspective so as not to undermine the joy and excitement of the process.

In domestic adoptions, the primary risk for adopting parents is the emotional risk that a birth parent will change his or her mind. For example, birth parents in most states may revoke their consent to an adoption within a certain number of days after having given that consent. The time period to revoke consent varies by state. An attorney can assist in developing the best strategy for minimizing that risk.

International adoption has significantly less risk of consent revocation. However, other risks may be involved, such as potential ambiguity regarding the child’s medical history. Adopting parents are also likely to incur extra costs associated with travel, and may find that obtaining a newborn is more difficult as the adopting parents are ordinarily matched with children from an orphanage rather than an expecting birthmother.

What if the birth parents and the child are in a different state from the adopting parents?

Because adoption laws vary from state to state, it is important to understand which state’s laws apply. North Carolina, like all states, has adopted the Interstate Compact on the Placement of Children (“ICPC”), which promotes cooperation between two states for interstate adoptions. The ICPC sets forth the requirements that must be met by the state that is sending a child to another state for placement, as well as the state receiving a child to be placed. An adoption attorney can help the parents navigate through ICPC without complication.

I’m considering placing my child for adoption--where do I start?

Birth parents considering adoption should begin by educating themselves about the process. The Internet and the local yellow pages can very easily provide a number of relevant educational and support resources. Adoption lawyers are a great resource for practical and legal information, as well as general information on and referrals to support groups and agencies.

In North Carolina, birth parents must decide whether to place their child through independent adoption or through an agency. In an independent adoption, the birth parents make direct contact with a couple that desires to adopt. This may be accomplished through word of mouth or advertisements. The birth parents then directly consent to the adoption of their child by the adopting parents. In an agency adoption, on the other hand, the birth parents relinquish their parental rights to an agency that will ensure that the child is cared for until adopting parents are found. After identification and approval of the adopting parents, the agency is then able to convey the consent for the adoption of the child. An adoption lawyer can help birth parents decide which type of adoption is best for them.

What is the attorney’s role in the adoption process?

An adoption attorney’s primary role is to guide the client through the adoption process smoothly and with understanding. In a domestic adoption, the attorney representing birth parents may provide advice on locating adopting parents or selecting an adoption agency. In addition, a lawyer will advise the birth parents regarding all of their rights and obligations in the adoption process, including consent to adoption or relinquishment of parental rights, as well as revocation of consent to the adoption.

When representing adopting parents, the attorney will ensure that all necessary practical and legal steps are taken in order to complete the adoption. The attorney can serve as the adopting parents’ primary resource for developing strategies to locate a child and be chosen by a birth parent. The attorney will also advise the adopting parents about the home study process and work to obtain valid consent to the adoption. An experienced adoption attorney will also prepare and counsel adopting parents through the financial and emotional “ups and downs” involved in the adoption process.

A lawyer representing an adoption agency can ensure that the birth parents have executed the necessary relinquishment of parental rights, and handle all other documentation and legal steps necessary for completion of the adoption.

For international adoption, two or more attorneys will be involved. First, attorneys in the child’s country of origin will assist with making the adoption legal in that country. Second, a U.S. attorney will assist the parents with immigration issues. In addition, this or another attorney will help with re-adoption in the state of the adopting parents’ residence and the home study options.

Because of the personal and changing nature of the adoption process, an adoption attorney must be available to you via telephone or e-mail outside of traditional working hours, and should only be selected after appropriate inquiry about the attorney’s accessibility.

Finally, the actual adoption is a legal proceeding. In North Carolina, it is a special proceeding before the Clerk of Superior Court. The appropriate state of jurisdiction must also be determined, and is generally related to the length of residency of the adopting parents and/or the adopted child. A qualified attorney is therefore an ideal resource to assist with the entire adoption process.

Who can help?

We can. Smith Debnam’s domestic law team is led by Board Certified Family Law Specialists with years of experience in adoption and other family law issues. Coupled with our immigration practice, we provide a unique service where family lawyers and immigration lawyers work together in the area of adoption. International adoptions require an attorney with strong knowledge of immigration issues who can advise clients regarding visas and the naturalization process. International adoptions frequently contain a domestic component, including the process of re-adoption in the adopting parents’ home state. Domestic adoptions can also be difficult, and require the knowledge of lawyers who understand both intrastate and interstate adoption procedures. Amanda L. Bryant of Smith Debnam’s immigration law practice and Lynn Wilson Lupton of the family law practice work together to give their clients step-by-step assistance, affording them patient, compassionate, and thorough counsel throughout the entire adoption process.

During 2005, the North Carolina Legislature was busy creating new laws, doing away with old laws, and changing existing laws. While the Legislature touches diverse areas of law, this article focuses on areas we believe are relevant to the majority of our clients.

H1176 increased several exemptions available to judgment debtors or debtors filing bankruptcy. The homestead exemption, which allows debtors to keep a certain amount of equity in their home, increased from $10,000 to $18,500. Additionally, persons 65 years or older are allowed a $37,000 exemption if their home was previously owned jointly as tenants by the entireties, or as joint tenants with rights of survivorship if the former co-owner is deceased.
The motor vehicle exemption increased from $1,500 to $3,500, and the household goods exemption increased from $3,500 to $5,000. Several other exemptions were also increased to reflect the effects of inflation.

S1048 provided consumers in North Carolina with a powerful tool to protect their personal information. The Identity Theft Protection Act limits what businesses can do with a customer’s personal information, including Social Security numbers. For example, businesses can no longer discard records containing personal information, or require a customer to transmit his or her Social Security number to access an Internet site. In addition, businesses cannot disclose a customer’s Social Security number to a third party without written authorization.
Another protection feature introduced by this statute, called a “security freeze,” allows consumers to take proactive steps to stop would-be criminals from obtaining credit using the consumer’s Social Security number. A security freeze prohibits a credit bureau from releasing any credit account information from a “frozen” account. A consumer may very simply activate a security freeze by making a written request to the three primary credit bureaus. Once the account is frozen, a credit bureau must receive express written authorization from the consumer before granting access to their credit information by a potential creditor. When subsequently applying for credit, those consumers must provide proper authorization to the credit bureaus at least three days prior to the date a creditor may request their information.

H217 was introduced and passed in response to the tragic death of UNC reporter Stephen Gates. While changing a tire on I-40, Gates was hit and killed by an SUV. After the accident, a passenger in the vehicle drove the SUV away. Under existing hit and run statutes, it was only a crime for the driver to leave the scene of the accident.
The new statute closes the loophole and holds passengers as well as drivers accountable for their actions. The new law makes it a crime for either drivers or passengers of a vehicle involved in an accident to leave the scene for any reason other than to call for police or medical assistance.

S1029 empowered victims of domestic violence by providing an opportunity to terminate a residential lease when an act of domestic violence is involved. Normally, a domestic violence victim faces continuing obligation under a rental agreement when she is trying to escape her aggressor. This new law provides that tenants who are the victim of domestic violence can terminate their rental agreements upon giving 30 days notice to the landlord, with no obligation beyond the notice period.
The statute also provides that a landlord may not discriminate against tenants who may be dealing with a domestic violence situation. A landlord cannot terminate a tenancy, fail to renew a tenancy, refuse to enter into a rental agreement, or retaliate in any way based on the tenant’s status as a victim of domestic violence. If a tenant experiences domestic violence, the new law requires that a landlord change the locks of the victim’s dwelling within 48 hours or allow the tenant to change the locks.

In an effort to curb the production of the illegal drug methamphetamine, H248 restricted access to drugs that contain pseudoephedrine, such as Sudafed and other over-the-counter cold remedies. Any single over-the-counter purchase is now limited to no more than two packages of a medication containing a combined total of six grams of pseudoephedrine. Within any 30-day period, a person cannot buy more than three packages that contain a combined total of nine grams of pseudoephedrine.
Retailers who carry these drugs must post a sign informing customers of the new law. Retailers must also maintain a record of all sales of pseudoephedrine drugs and provide access to these records by law enforcement officers. This law does not apply to pseudoephedrine drugs obtained through a doctor’s prescription.

H1541 provided homeowners more protection from their homeowner’s associations. The new law reduced the level of allowable charges for late payment of assessments. If a homeowner fails to make timely payment of a homeowners’ association assessment, the late fee cannot exceed the greater of twenty dollars ($20.00) per month or ten percent of any unpaid assessment installment. The law also provides new procedural protections for homeowners who violate covenants. (A detailed article by Smith Debnam attorney David Simpkins regarding the impact of H1541 is scheduled for publication in the next edition of Legal Insights.)

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