Bill Summary for H 236 (2017-2018)

Summary date: 

Mar 1 2017

Bill Information:

View NCGA Bill Details2017-2018 Session
House Bill 236 (Public) Filed Wednesday, March 1, 2017
AN ACT TO PROVIDE FOR THE CLERK TO APPOINT AN INTERIM GUARDIAN AD LITEM ON THE CLERK'S OWN MOTION; TO PROVIDE FOR THE CLERK TO EXTEND THE TIME FOR FILING INVENTORY IN THE PROPERTY OF THE DECEASED; TO PROVIDE FOR ISSUANCE OF AN ORDER FOR AN ARREST WHEN A PERSON FAILS TO APPEAR AFTER BEING SERVED WITH A SHOW CAUSE IN A CIVIL PROCEEDING; TO AMEND HOW COSTS IN ADMINISTRATION OF ESTATES ARE ASSESSED; TO ALLOW FOR TEMPORARY ASSISTANCE FOR DISTRICT ATTORNEYS WHEN THERE IS A CONFLICT OF INTEREST; TO AMEND OTHER STATUTES GOVERNING THE GENERAL COURT OF JUSTICE, AS RECOMMENDED BY THE NORTH CAROLINA ADMINISTRATIVE OFFICE OF THE COURTS; TO PROVIDE FOR THE ESTABLISHMENT OF AN ARBITRATION AND MEDIATION PROGRAM FOR THE NORTH CAROLINA BUSINESS COURT; TO AMEND STATUTES GOVERNING MEDIATION IN THE GENERAL COURT OF JUSTICE; AND TO AMEND THE LAW GOVERNING THE REGULATION OF MEDIATORS.
Intro. by R. Turner.

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Bill summary

Amends GS 1A-1, setting out civil procedure Rule 5 pertaining to service and filing of pleadings and other papers, to establish that the filing of pleadings and other papers with the court as required by the rules of civil procedure must be made by filing them with the clerk of the court, pursuant to the rules promulgated under GS 7A-109 or subsection (e)(2), except as specified (currently, does not clarify filing pursuant to the rules promulgated under GS Chapter 7A or subsection (e)(2)). Provides for filing electronically if rules and procedures are promulgated by the Supreme Court and the Administrative Office of the Courts (AOC) pursuant to GS 7A-49.5 (statewide electronic filing in courts) in addition to GS 7A-34 (rules of practice and procedure in trial courts) and GS 7A-343 (Duties of the Director of the AOC). Adds a provision to establish that failure to affix a date stamp or file stamp to any pleading or other papers filed in civil action or special proceeding do not affect the sufficiency, validity, or enforceability of the document. Makes clarifying change to Rule 58 in GS 1A-1.

Amends GS 28A-9-2, setting forth grounds for summary revocation of letters testamentary, letters of administration, or letters of collection by the clerk of superior court without a hearing, to add when a personal representative or collector is a licensed attorney and the clerk is in receipt of an order entered pursuant to GS 84-28 (attorney discipline and disbarment by the North Carolina State Bar) enjoining, suspending, or disbarring the attorney as grounds for summary revocation by the clerk without hearing. 

Amends GS 35A-1290 to combine existing subsections (b) and (c), setting forth grounds for a clerk to remove an appointed guardian or to take other action sufficient to protect the ward's interests in 16 specified cases (currently, seven specified cases in subsection (b) and nine specified cases in subsection (c)). Additionally, adds the specific case where the guardian is a licensed attorney,  and the clerk is in receipt of an order entered pursuant to GS 84-28 enjoining, suspending, or disbarring the attorney.

Amends GS 30-17, pertaining to when surviving children are entitled to an allowance for the child's support for the year next ensuing the death of the parent, to require the specified allowance to be paid to the child's general guardian or guardian of the estate (currently, to the child's general guardian only), if any, if the child does not reside with a surviving spouse or a surviving parent when the allowance is paid. 

Amends GS 35A-1114, providing for appointment of an interim guardian, to allow the petitioner or guardian ad litem (currently, only the petitioner) to file a verified motion seeking the appointment of an interim guardian at the time of or subsequent to the filing of a petition under Article 1 of GS 35A (petition for adjudication of incompetence). Requires the motion and notice setting the date, time, and place for the hearing to be served promptly on the petitioner, the respondent and on the respondent's counsel or guardian ad litem, and other persons designated by the clerk. Directs the hearing to be held as soon as possible, and in no event later than 15 days after the motion has been served on the respondent. Makes conforming changes. 

Amends GS 35A-1112, concerning a hearing on the petition for the adjudication of incompetence, to allow the clerk to appoint an interim guardian pursuant to GS 35A-1114(d) and (e) on the clerk's own motion at the hearing on the petition if the clerk determines that such an appointment is in the best interests of the respondent. 

Amends 28A-20-1 to allow the clerk of superior court to extend the time for filing the inventory of all the real and personal property of the deceased by the personal representative or collector of an estate. 

Amends GS 28A-21-1 to establish that the annual accounts to be filed by the personal representative or collector required by this statute are due 30 days after the expiration of one year from the date of qualification of the personal representative or collector, or if the fiscal year is selected by the fifteenth day of the fourth month after the close of the fiscal year selected by the personal representative or collector, and annually on the same date thereafter (currently, does not have due date of 30 days after the expiration of one year from the date of qualification).

Amends GS 28A-21-2, providing for the filing of the final account by the personal representative or collector, by adding two new subsections. Requires the personal representative or collector to certify that no estate or inheritance tax return was required to be filed for the estate in the final account filed with the clerk of superior court. Sets forth information the certification must include, and establishes that after being filed and accepted by the clerk of superior court, the certification will be prima facie evidence that the property is free from any State inheritance or State estate tax liability. Applies to estates of decedents who died before January 1, 2013, only. Directs the personal representative or collector to produce vouchers for all payments or verified proof for all payments in lieu of vouchers. Allows for the final account to be filed voluntarily at any time with the approval of the clerk of superior court. Requires the accounting to be reviewed, audited, and recorded by the clerk of superior court in the manner presribed by GS 28A-21-1 in all cases. 

Amends GS 5A-23(b) to make clarifying change to provide that proceedings for civil contempt are before a district court judge, unless a court superior to district court has issued the order, in which case the proceedings are before that court, except when the clerk of superior court has original subject matter jurisdiction and issued the order when the General Statutes specifically provide for the exercise of contempt power by the clerk of superior court. 

Amends GS 15A-305(b) to clarify that an order for arrest can be issued when the common-law writ of arrest has been issuable, including when a person fails to appear after being served with a show cause order in a civil contempt proceeding. 

Amends GS 7A-307 (Costs in administration of estates). Deletes text requiring the assessed cost for the support of the General Court of Justice to be paid when the inventory of the estate of decedents is filed with the clerk. Directs that the fee for additional gross estate value coming into the hands of the fiduciary after the filing of the inventory shall be computed from the information reported in the account. Deletes text requiring facilities fees and General Court of Justice fees to be paid at the time of filing of the first inventory.

Amends GS 7A-64 (Temporary assistance for district attorneys). Adds conflicts of interest to the list of facts required to be shown before the Director of the Administrative Office of the Courts may provide assistance for district attorneys.

Amends GS 7A-343 (Duties of Director). Directs the Director of the Administrative Office of the courts to prescribe uniform administrative and business methods, systems, forms, practices and procedures, and records to be used in the courts (currently there is no direction for practices and procedures, and the direction is only for offices of the clerks of superior court).

Amends GS 122C-268(g) to allow hearings to be held by audio and video transmission between a treatment facility and a courtroom in which the judge and the respondent can see and hear each other.  Directs that if the respondent has counsel, the respondent must be allowed to communicate fully and confidentially with counsel during the proceeding, and that the procedures and type of equipment for audio and video transmission must be approved by the Administrative Office of the Courts.

Amends GS 58-76-15 (Summary remedy on official bond) by removing clerks from the list of officials governed by this statute.

Amends GS 58-76-25 (Evidence against principal admissible against sureties) by removing clerks of courts from the list of officials governed by this statute.

Amends GS 1-110(b) to clarify that the clerk of superior court has the responsibility, nunc pro tunc to date of filing, to serve process upon the defendant when an inmate’s motion to proceed as an indigent is approved by a judge.

Amends GS 1A-1, Rule 3 (Commencement of action) by deleting provisions requiring the clerk to maintain and provide to the senior regular resident judge an index of medical malpractice actions. Makes a technical change.

Amends GS 122C-264 (Duties of clerk of superior court and the district attorney) by deleting subsection (e), which directed the clerk to keep a separate list regarding outpatient commitment.

Amends GS 14-208.12A(a) (allowing sex offenders to petition the superior court to terminate the registration requirement). Adds a provision that, regardless of where the offense occurred, if the defendant was convicted of a reportable offense in any federal court, the conviction is treated as an out-of-state offense for purposes of the statute. Applies to petitions filed on or after the date the act becomes law. 

Amends GS 7B-2901(a), allowing for the destruction of clerks’ records of juvenile abuse, neglect, or dependency cases in accordance with a retention schedule approved by the Director of the Administrative Office of the Courts and the Department of Natural and Cultural Resources.

Amends GS 7B-3000(d), allowing for the destruction of recordings of juvenile records in accordance with a retention schedule approved by the Director of the Administrative Office of the Courts and the Department of Natural and Cultural Resources.

Makes a technical change to GS 7B-6023(b1).

Amends GS 84-2 (Persons disqualified). Clarifies that the specified government officials prohibited from the private practice of law are permitted to perform unpaid pro bono legal services.

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