TURNING 18? GOT YOUR POA’S LINED UP?

TURNING 18? GOT YOUR POA’S LINED UP?

By Kim K. Steffan, Attorney

 

High school graduations make me think about kids becoming adults, leaving the nest, or making their way in the world. You may not have thought about why a financial power of attorney (POA) and a health care power of attorney (HCPOA) are important for young adults upon turning 18.

As our teenagers happily remind us, turning 18 makes one legally an adult.  If you are a parent of a 17 year old, you’ve been used to making decisions for him or her, giving permission for activities, maybe opening and managing a savings account for him or her, and receiving medical information.  All of a sudden, once your child turns 18, you as a parent no longer have the automatic authority to do those things, even if your child still resides at home.  A doctor may refuse to provide you medical information about your adult child because doing so would violate HIPAA.  Banks may refuse to allow you to move money from your child’s savings account to his checking account when he is in college, even if you used to do that for him.  How can we avoid these problems?

Young adults, like any other adults, should consider having a financial power of attorney (POA) and a health care power of attorney (HCPOA).  The financial power of attorney appoints someone else to handle their financial matters.  This includes getting their bills paid, moving money from one account to another, and signing contracts.  The POA can be set to appoint someone to act only if the young adult is physically or mentally incapacitated (e.g., due to accident or illness) or it can be set to allow someone he/she trusts to do these things anytime for his/her convenience (e.g., when he/she is away at college, traveling before starting a job, etc.).  A POA should be made effective anytime only if the person being appointed is someone the young adult fully and completely trusts, because it means that person can take actions about his/her finances, credit, and bank account even when the young adult is perfectly capable of handling these things for himself/herself.

A health care power of attorney (HCPOA) appoints someone to make medical decisions only if the person making the document cannot make those decisions for himself/herself.  If a young adult appoints a parent on her HCPOA, it means that if she has an injury or illness making her unable to make medical care decisions, the parent would be authorized to receive information from the doctor or hospital, and to make decisions based on that information.

Young adults most commonly appoint one or both parents (or, if raised by someone else, that person) to serve on their financial and health care powers of attorney.  Over time, the young person may develop other relationships making it logical to change the person appointed, like when he/she marries or has a long-term relationship.  The documents can always be updated later.

Many attorneys will prepare financial and health care powers of attorney for young people who have recently turned18 at a courtesy (inexpensive) fee that doesn’t cover the lawyer’s time.  Lawyers often do this just to help out, because they know it lets the family rest easier.  It is always acceptable to ask for fee information from a lawyer’s office either before scheduling an appointment or before the lawyer begins work for which you could be charged.

 

Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough.  She can be reached at 919-732-7300 or kim.steffan@steffanlaw.com.

 

YOUNG ADULTS AND ALCOHOL LAWS

YOUNG ADULTS AND ALCOHOL LAWS

By Kim K. Steffan, Attorney

 

Here are four terms that are important to understand criminal liability of adults and underage (under 21) persons.  How many of them do you know: “no exceptions state,” “zero tolerance,” “Good Samaritan,” and “400%”?

  1. As a “no exceptions state,” NC makes it a crime (a misdemeanor) for an adult to provide alcohol to someone under 21 for any reason, anywhere. There is no parent-child exception, at-home exception, or a dinner-table exception. Penalties include fines, community service, and possible jail time.
  2. North Carolina is a “zero tolerance” state for underage drinking and driving. It is illegal for an underage person to drive with any alcohol in his system, or while drinking alcohol. If alcohol is detected when the young person is stopped, his license is immediately suspended for 30 days, with a $100 fee to get it back; if convicted, he has a one year license suspension (and if under 18, no limited driving privilege), community service or jail time, a fine of up to $1,000, court costs of at least $190, plus his attorney’s fees.  This conviction may have to be disclosed on college applications, job applications, rent applications, etc.
  3. There are two places where the “400%” appears in this column. If convicted of underage drinking and driving, expect vehicle insurance to increase by about 400% for three years.
  4. If someone under 21 is convicted of purchasing or trying to purchase alcoholic beverages, it means a one year license revocation (which may be surprising, since the offense doesn’t involve driving) with no limited driving privilege, community service or jail time, court costs of $180, a fine, and attorney’s fees if a lawyer is retained. Vehicle insurance rates go up as well.  Penalties for underage drinking include community service or jail, a fine, court costs, and possible attorney’s fees.  Any criminal conviction can cause problems with applications for employment, college, or apartment rental.
  5. NC has a “Good Samaritan” law protecting from criminal prosecution someone who calls for emergency medical help for another person who appears to be having a drug-related overdose, including alcohol poisoning. To get this protection, the caller must give her name to the 911 operator, and must stay with the victim until help arrives.  The victim also receives immunity from criminal prosecution.  If a medical emergency like this happens at a party, fear can cause deadly inaction.  It is important to know that you can and should call 911.
  6. What’s the other “400%” reference? Orange County District Court records show that, from 2010 to 2015, prosecutions for adults who gave alcohol to someone under age 21 have gone UP by 400%.  Orange County law enforcement and courts take this offense seriously.  Alcohol contributes to the three leading causes of death among youths 12 -20 years old (unintentional injury, homicide, and suicide).  Alcohol consumption by high school students tends to spike around prom and graduation.  The most common place teens get alcohol is parents’ homes (theirs’ or their friends’).

 

Knowing the law may help keep you and those you love out of trouble, and from suffering potentially life-changing consequences.  Thanks to Gayane Chambless of the Orange Partnership for Alcohol and Drug Free Youth for assisting with resources for this column.

 

STANDBY GUARDIAN LAW

          Suppose you have been appointed by a Clerk of Court as the guardian (meaning either a general guardian or a guardian of the person) of an adult relative who is incompetent because of dementia, intellectual disabilities, or developmental disabilities. What if you then develop progressive or debilitating health problems of your own? How can you protect your loved one if your health problems at some point make you unable to serve, or even cause your death? A section of Chapter 35A of the NC General Statutes added in 2015 allows you to name a “standby guardian” to take your place if necessary.  It expands upon an existing statute allowing seriously ill parents of minor children to name a standby guardian for their children, to serve in the event of the parent’s death or disability.

          The standby guardian is someone who acts as a back-up guardian, ready to assume the responsibilities of a guardian of the person or a general guardian upon a triggering event, including the current guardian’s death, mental incapacity (as determined by the Clerk), or sooner upon the current guardian’s written consent (which may be a decline in physical health).  Without naming a standby guardian, if the current guardian died or became incapacitated, there would be a gap leaving no one serving as guardian until the Clerk is able to hold a hearing to appoint a new guardian.  Also, in that situation, the Clerk would not have the advantage of knowing whom the original guardian thinks would do a good job next.

          However, the standby guardian process is only available when the current guardian suffers from a progressive chronic or irreversible fatal illness.  It is not available when the current guardian is healthy.  You may be thinking that it should be available to any guardian since even a healthy guardian can be “hit by a bus” and killed – and you’d have a good point.  At some point in the future, a further expansion may permit this for any guardian, but not yet.

          If you are a guardian with a progressive chronic or irreversible fatal illness, you have two options to appoint a standby guardian.  One is by petition.  Until more specific forms are developed, use AOC Form E-209, which is the form for guardians of minor children.  The Clerk will hold a hearing to confirm both the guardian’s progressive illness and the suitability of the person nominated as the standby guardian.  Then the Clerk will enter an order appointing the standby guardian and issue him/her letters of appointment that list the conditions upon which the power becomes effective. When the standby guardian receives documentation of the triggering event (like a death certificate for the original guardian), he/she must file it with the Clerk.

           The other way to name a standby guardian is by a written designation witnessed by two adults.  When the standby guardian receives any of the documents listed in the statute for a triggering event, his authority begins.  However, he still must file a petition with the Clerk within 90 days of receiving documentation of the triggering event. If the Clerk finds the statutory requirements have been met, the Clerk will enter an order appointing the person and issuing guardianship letters to him/her.

          While the statute does not address all problems involved in managing guardianships of adults, it does solve one.  For more information on standby guardianships, contact the Clerk of Court’s office or consult an attorney.

 

 

EXPUNGING CRIMINAL RECORDS FOR YOUNG DEFENDANTS

You may know someone who committed a youthful mistake resulting in a criminal record.  That someone may even be you.  Even if you’ve had a clean record since, this history can interfere with getting a job, renting an apartment, obtaining a professional license, or establishing favorable child custody rights.  Wouldn’t it be great to make this record go away?  For many charges and/or convictions of juveniles or young adults under 21, it is possible to make them go away by a process called “expungement” or “expunction.”

  • Delinquent or Undisciplined Juveniles (e.g., “found guilty” of skipping school, being where minors are not allowed, driving a car without a license, running away, etc.): You can have these records expunged by applying after you are 18, provided you were not found guilty of any later crimes as a juvenile or as an adult.  It is not available to serious crimes (Class A through E felonies).
  • Juvenile Whose Case was Ultimately Dismissed: If you were charged with a crime or alleged to be delinquent or undisciplined but the case was dismissed (including where you completed a deferred prosecution program), you can apply to expunge the charges any time after you are 16.
  • Conviction of Misdemeanor Under 18:  If you were convicted of a misdemeanor like simple assault or shoplifting when under 18, you can expunge the record if you wait two years to apply, and if you don’t have any felony or misdemeanor convictions within that time (except minor traffic offenses).  You are not eligible if the offense involved impaired driving, however.
  • Conviction of Non-Violent Felony Under 18:  If you were convicted of a non-violent felony when under 18 (e.g., felony larceny, felony drug offenses), and if this is the only conviction on your record, you can have it expunged.  To be eligible, you must also perform 100 hours of community service. Expungement is not available for offenses involving impaired driving. The waiting period to apply is four years after conviction (if no sentence was imposed) or four years after finishing probation or incarceration.
  • Conviction of Misdemeanor Possession of Alcohol Under 21:  This can be expunged by waiting two years from the conviction (or from completing probation) to apply, if you do not have any misdemeanor or felony convictions during that time (other than minor traffic offenses).  Note that driving while impaired convictions are not eligible for expungement, regardless of age.
  • First Offender Conviction of Certain Toxic Vapors/Drug Paraphernalia Charges Under 21:  This conviction can be expunged if you completed a first offenders program for toxic vapors or drug paraphernalia. Alternatively, apply more than 12 months after conviction.  You also must have a clean record of no misdemeanor or felony convictions since the original offense (except for minor traffic offenses).
  • Certain Gang Offenses Under Age 17: Expungement is available if this is your only felony or misdemeanor (other than minor traffic offenses) during the minimum two years between your conviction (or completion of probation if you were placed on probation) and your application. You are also eligible for expungement if your charges were dismissed under a conditional discharge for first time offenders program.
  • Dismissal or Not Guilty Due to Identity Theft:  At any age, if misdemeanor or felony charges were dismissed or you were found not guilty as a result of someone fraudulently giving your name to police, you can have the charge expunged.

 

If you have a charge or conviction expunged, you can and should respond to questions about your criminal background as if this event never happened.  That’s the purpose of expungement.

Some expungements are simple, with forms available from the Clerk.  In other circumstances, expungement is more complicated, and you will likely want an attorney to help you.  Some expungements require a Clerk’s fee, and some do not.  More information is available from the Clerk of Court or from an attorney.  Steffan & Associates, PC can assist you in successfully navigating an expungement.

NEGOTIATING YOUR COMMERCIAL LEASE

By Kim K. Steffan, Attorney

 

            If you own or manage a business that wants to rent space, do you know what to look for, and what to look out for, when negotiating and signing a lease with a landlord?  Here are some tips.

            First, remember that whatever the signed lease says, that’s the rule that will apply to your case.  Unlike residential leases where a statute can trump a lease (and can sometimes protect the tenant more than the lease), courts usually enforce commercial leases exactly as written.  That makes it important to pay attention to the terms of the lease before signing it.

            Some commercial landlords propose a lease that is one-sided in their favor.  How much can you negotiate with a landlord?  It depends on the rental market.  If the supply of rental space is tight, the landlord may figure that if you don’t accept his terms, the next person probably will.  When the rental occupancy rate is low, though, you have a good chance of negotiating some changes.  In any event, it never hurts to ask.

            Clients often ask whether they should or must sign a personal guarantee of their corporation’s or LLC’s lease.  It’s always best to have only your company or LLC liable for business obligations (like a lease) and not sign a personal guarantee.  However, many commercial landlords will not lease to a small business without a personal guarantee (much like a bank won’t loan a small business money without a personal guarantee).  You may not be able to avoid it, in which case, be aware what you are signing.  If you are personally liable for a lease, it may make you more cautious about how long the lease goes, how open ended common area management (CAM) fees are, etc.  

            Commercial leases commonly shift all or most maintenance and repairs to the tenant.  Try to negotiate the landlord being responsible for maintenance and repairs that are permanent or long-term in nature, like roof repairs, painting, etc.  Since tenants are commonly asked to be responsible for heating and air conditioning repairs, try to negotiate a dollar limit per year, since replacing a compressor would be expensive and would benefit the landlord long after your lease term has probably ended.

            It is easier for a landlord to evict a commercial tenant who fails to pay rent than it is to evict a residential tenant who is in default.  You may know that residential landlords have to go to small claims court to get an eviction order, but that is not so with commercial leases.  It is legal for a commercial lease to allow a landlord to change the locks to evict a tenant who is in default for a period of time set by the lease.  If a tenant leaves her property in the space and doesn’t pay rent, a commercial lease can allow the landlord to deem the contents abandoned.  The landlord can move it out and sell it, give it away, or throw it away, if the lease allows this.

            I represent both landlords and tenants in commercial leases (just not in the same transaction or in any other situation that would pose a conflict of interest, of course).  I find commercial tenants who see me for problems with their landlord or with their lease often didn’t read the lease carefully before they signed it, and didn’t try to negotiate better terms.  There are some other technical legal issues that are important, but are beyond the scope of this article, like indemnification and duty to mitigate damages; a legal review can address and explain these issues.  An ounce of prevention can be worth a pound of cure when it comes to signing a better lease, or at least signing your lease with your eyes open as to what the rules are.

ARE RETIREMENT ACCOUNTS PROTECTED FROM CREDITORS?

ARE RETIREMENT ACCOUNTS PROTECTED FROM CREDITORS?

By Kim K. Steffan, Attorney

 

            Job losses during difficult economic times caused some people who had always paid their bills to become delinquent on debts like credit cards and consumer loans.  In some cases, creditors got judgments against them, or threatened to.  A common question in those cases is whether their creditors can take their retirement accounts.  Many of those clients have put a little away each year for a long time, and would hate to lose this retirement nest egg.

            The good news is that retirement accounts which you fund while you are working are generally safe from most creditors.  N.C. General Statute section 1C-1601 covers what assets creditors can seize and sell to satisfy judgments – a topic which is entirely separate from filing bankruptcy, by the way.  Under that statute, money in your 401(k), traditional IRA, Roth IRA, and/or 403(b) is protected.  Whether you file bankruptcy or not, NC law applies to allow an unlimited dollar amount of protection for qualifying retirement accounts.  Your contributions to your employer’s pension plan (like the N.C. State Retirement System) are also safe, but for a different reason – because they are held by the pension plan and are not assets in your name. 

            In fact, if you see creditor problems coming up, you might choose to contribute as much as you can (subject to annual limitations by law, which depend in part on your age) to protect those dollars from creditors too.  If those same funds are left in your bank account or used to purchase an extra vehicle, for example, a creditor can easily take the funds or the vehicle to satisfy a judgment entered against you.

            The rule I’ve described governs consumer debt like credit cards, furniture store loans, deficiency judgments on vehicle loans, personal loans, etc.  As you might guess, there are some non-consumer creditors that can seize your retirement accounts – e.g., when the United States, North Carolina, or a County is the creditor, or when needed for paying alimony or child support.

            Some clients follow up with this question:  Didn’t I hear news about a U.S. Supreme Court case making retirement accounts fair game for creditors?  The Clark case in the summer of 2014 held that when you inherit an IRA from someone other than a spouse, your inherited IRA funds are not protected from your creditors.  Why treat IRAs inherited from someone other than a spouse differently than retirement accounts you have funded?  Those accounts are treated differently for tax purposes than the retirement accounts you fund for your retirement.  Inherited IRAs (from other than a spouse) don’t have to be left untouched until you retire.  In fact, the IRS requires that you take the money out of these inherited IRAs within a few years anyway (because they want to tax you on the income).  That makes these inherited IRAs more like money market accounts than like true retirement accounts.  A special rule still protects IRAs inherited from a spouse, because the law recognizes that most couples plan together for retirement using both spouses’ accounts.  A lot of news coverage that was just too summary made it sound like the USSC had held all retirement accounts were fair game for creditors, which is not accurate. 

            So, if you’ve fallen into trouble with consumer debt, you can usually rest easy that your retirement accounts you’ve worked hard to put away for your future are safe.  They will withstand consumer creditor claims and still be there to help support you and your spouse during retirement.

 

PATERNITY QUESTIONS TAKE MANY FORMS

Paternity and legitimation questions come in many forms. Who decides what father’s name is on a birth certificate?  What rights and responsibilities go with paternity?  Can illegitimate children inherit from their father?

First, who gets on a birth certificate, and how?  If the mother is married (even if she is separated), her husband is listed as the child’s father on the birth certificate, no matter whom she identifies as the father. That may seem odd, but a statute requires this because there is a starting presumption that her husband is the father.  If her husband is not the father, then there will have to be additional legal steps taken (and DNA testing) to establish paternity.

If the mother is not married, hospital staff will ask the father’s name.  The father may be there to provide the information himself, which makes things easier. If the father isn’t present and the mother says she does not know who the father is, no father is listed on the birth certificate.  If she supplies a name for the father, that name is listed.

You can see how people might have different ideas about who is or may be the father, and how paperwork at the hospital may create problems.  If a mother lists a father’s name but he denies it, he will need to get a DNA test.  Fortunately, now DNA testing is done by swabbing the inside of baby’s and Dad’s cheeks.  It used to require a blood draw.  A court will enter an order based on the DNA test either confirming paternity or not (and taking the father’s name off the birth certificate if appropriate).

The other side of that coin is when the mother lists no father on the birth certificate, but a man who feels sure he is the father wants to have the legal rights of a father.  He can file a legitimation action (which also involves a DNA test).  If the test shows a match, the court will enter an order recognizing him as the father, determining the child to be legitimate as defined by statute, and adding the father to the birth certificate.

Paternity matters for custody rights and for support responsibilities. Legal recognition as a father includes the right to participate in making decisions about the child, and the ability to ask the court to grant the father visitation or (in the proper circumstances) physical custody. By law, both parents have the responsibility to provide reasonable financial support for their child.  If either parent is under age 18, that parent’s parents (the baby’s grandparents) are required to provide support on his/her behalf until he/she reaches age 18. Once the parent reaches age 18, the responsibility of support for the baby is his/hers; grandparents may choose to help, but aren’t legally required to do so.  If the child’s mother needs help from the county Child Support Enforcement Office to establish and collect child support, that office will also assist with the paperwork necessary to establish paternity.  Establishing paternity is a critical part of establishing a child support obligation.

Legitimation or a legally sufficient acknowledgment of paternity (both of which require taking legal steps) matters for inheritance.  Without that, illegitimate children do not inherit from fathers in NC except through a will.  If a man dies without a will, survived by two children by his late wife and one outside the marriage whom he treated like his own but never legally acknowledged or legitimated, his estate will go to his two legitimate children, excluding the other child.  Without legitimating the child, he could still arrange for the child to inherit from him by having a will that includes all three children.  A will doesn’t solve all the legal problems that arise from having an illegitimate child, but it does solve one.

 

HOW TO MAKE VEHICLE TRANSFER EASIER WHEN SOMEONE DIES

HOW TO MAKE VEHICLE TRANSFER EASIER WHEN SOMEONE DIES

By Kim K. Steffan, Attorney

 

            If you are married or in a long-term relationship, consider having all your vehicles titled as “joint with right of survivorship.”  When one partner dies, the other partner will own 100% of the vehicle.  The survivor can transfer the title the easiest way – by bringing the title and death certificate to the DMV office.  No Clerk of Court or estate paperwork is necessary at all.  This saves time, money, and trouble.

            Titling a vehicle this way requires taking particular steps.  The initials “JWROS,” which stand for “joint with right of survivorship” must appear after both owners’ names on the title.  It looks like this:  “John Smith and Mary Smith, JWROS.” Just having both names (like “John Smith and Mary Smith”) without the initials “JWROS” will not give you the benefit of survivorship.  If it’s titled in both names without “JWROS,” half the value of the vehicle will be in the estate of either partner when he/she dies; it does not mean that the survivor will own 100% of the vehicle.

            Because titling vehicles JWROS is not well known, many DMV title clerks and car dealers’ staff are not familiar with it, and don’t think it can be done.  It can. NC law allows it.  I keep at my office to share with clients the section of the DMV Title Manual that permits it.  If you would like a copy at no charge, please contact my office.  It helps to take this with you to the car dealer when you purchase your vehicle or when you visit DMV to get your new title.  (The DMV Title Manual is a handy reference for a lot of things.  It tells you how DMV handles many transactions, what paperwork you need, what fees are charged, etc.  To find it, go to: https://connect.ncdot.gov/business/dmv/dmv%20documents/nc%20title%20manual.pdf.)

            Some clients who aren’t married or with a long-term partner ask me if they should title a vehicle JWROS with their adult child to transfer title automatically after they pass.  I usually discourage that, because it means giving a half interest in your car to your child.  If you decide to sell your car, both your child and you would have to sign.  Your child (as well as you) would have liability as an owner in the event of a wreck.  If your child has unpaid creditors who get a judgment against him or her, the creditor could force the sale of your car. 

            Sometimes a person dies owning a vehicle, and that is the only asset in his estate.  In that case, there is a shortcut so you do not have to probate the estate to free up that asset.  You can take the death certificate, will, and car title to Clerk’s Estates Office. You’ll fill out DMV Form 317 Assignment of Title, which the Clerk will certify for a nominal fee; then, take it to DMV to transfer the title.  If there’s no will, or if the person getting the vehicle by agreement is someone other than whom the will says, all family members must sign the Form. 

            Finally, if a vehicle is titled in the name of a deceased spouse (or is jointly owned but without JWROS), a surviving spouse can list the vehicle on a Years’ Allowance form with the Clerk. Take this form and the title to DMV to transfer the title to the spouse. The Clerk’s fee is nominal.  This option is only available to spouses.

            These are some ways to make it easier to transfer a vehicle title after someone dies without probating a full estate. Which one works best for you depends on your circumstances.

 

 

NC DRONE LAW

NC DRONE LAW
In recent years, more uses for drones (technically “unmanned aircraft”) have been developed. Farmers want them to identify where water or fertilizers are needed. Law enforcement envisions using them in criminal investigations. Private investigators could use them in surveillance. News organizations want to have them photograph dangerous places, like storm aftermath or riots. Amazon would like them to deliver packages to your house. A new state law took effect October 1, 2014 limiting the use of drones.
Note that the Federal Aviation Administration (FAA) has its own rules about drone use. The FAA is still developing rules, but basically a drone cannot be used for commercial or business purposes without an FAA permit. Under both federal and state laws, it is generally lawful for anyone to use model aircraft under 55 pounds in the sight of the operator on property where he has permission, away from manned aircraft, for recreational purposes.
The rest of this article assumes that the drone operator has an FAA permit, and assumes that the operator seeks to use the drone for something other than recreational purposes. A NC Department of Transportation license must be obtained before using a drone for commercial purposes. Under the new law, a person, company, or government agency may use a drone to conduct surveillance of any person, dwelling, or land only with the consent of the person or of the owner of the dwelling or land. Permission of the landowner is required to launch or retrieve a drone from their property. Without permission, no one may use a drone to photograph any individual for the purpose of publishing or disseminating the image. There is an exception for news agencies photographing newsworthy events or places where the public is generally invited.
Special rules for law enforcement attempt to apply existing laws about warrants to drones. If officers get a warrant based on probable cause, they don’t have to rely on these exceptions. Just as a police officer can search in plain sight (e.g., in an open front yard) without a warrant, an officer’s drone can view and photograph in plain sight. Since warrants aren’t required when an officer has a “reasonable suspicion” that quick action is needed to swift action is needed to prevent imminent danger to life or serious damage to property, to prevent the imminent escape of a suspect or the destruction of evidence, to conduct pursuit of an escapee or suspect, or to facilitate the search for a missing person, a drone can also be used without a warrant for these purposes.
Some privacy advocates worry about police using drones to photograph protestors. The new law allows officers to use drones to photograph gatherings to which the general public is invited on public or private land (e.g., if the protestors are gathered on a public street). If the protestors hold a closed meeting at someone’s home in order to plan an upcoming gathering, drones cannot lawfully take those photos without consent. However, consistent with federal law, police may use drones without a warrant to counter a high risk of a terrorist attack by a specific individual or organization if the US Secretary of Homeland Security or the Secretary of the NC Department of Public Safety determines that credible intelligence indicates that such a risk exists. If police gather evidence in violation of the statute, it is not admissible in criminal court unless the court determines that it was “obtained or collected under the objectively reasonable, good-faith belief that the actions were lawful.”
The new law makes it a criminal offense to use a drone to disrupt a manned aircraft, or to disrupt someone who is lawfully hunting or fishing. It is also a criminal offense to distribute images taken by a drone without the consent of the person photographed or the owner of the property photographed. If you are the victim of unlawful surveillance or photography, you may seek a Court injunction to stop it. You may also sue in civil court for actual damages. If the case involves disseminating photos, you may choose to sue for $5,000 per image instead of proving damages. Because technology changes rapidly, we should expect to see further development in federal and state laws concerning drones.

HOMEOWNER LIABILITY

Falling trees? Holes in the ground? Playground equipment? Have you ever thought about the liability issues you might face as a homeowner? There are many. Insurance helps in some cases, but not all.
A tree on your property falls into the middle of your neighbor’s house. Are you liable? It depends (which is the lawyer’s favorite answer). If the tree was healthy and came down unexpectedly, like by a lightning strike, no, you are not responsible for the damages. You weren’t negligent, and you haven’t done anything wrong. On the other hand, if you knew or should have known that the tree trunk had rotted, you would have had an opportunity to fix the problem. In that case, you would be liable because you have been negligent. Many insurance policies would cover this type of liability. If you see a neighbor’s tree is becoming dangerous, it is best to alert our neighbor politely. Preventing the problem is better than figuring out who must pay for the damage.
What if your friend has a two foot wide hole dug in her yard as part of a landscaping project, and you fall into it, tearing ligaments in your leg? Is your friend liable for your damages? If the hole was clearly visible, then no, because the law says you should have seen the danger and avoided it. If the hole was concealed or hidden, so you reasonably would not have seen it, then your friend was negligent, making her liable. Even if the fall was your fault, there may be a little bit of help for you. Your friend’s homeowner’s insurance may have what’s called “medical payments” or “medpay” coverage. Medpay is a small medical benefit payable to anyone who has medical bills from being injured on your property, no matter whose fault it was. Medpay is usually limited to about $1,000 in reimbursement paid when the injured person submits medical bills to the insurance company.
Your child’s friend comes over to play on your playground set, and takes a fall. If you have kept the playground equipment in a reasonably safe condition and if you are supervising play appropriately for the children’s ages, you aren’t legally responsible.
Intentional acts are usually not covered by insurance. If your college age teen has friends over and a fight breaks out in which he slugs his now-former friend, this is an assault. Other than medpay, your homeowners’ insurance isn’t likely to pay for the damages. If the injuries are serious, the damages may be substantial, and your teen is legally liable for them without any real help from insurance.
Do you have homeowners’ insurance? Sometimes I hear a client say that she plans to cancel her homeowners’ insurance policy to save money now that her mortgage is paid off. Mortgage lenders always require homeowners’ insurance to protect their loan investment in the property. Upon further thought, the client may realize that homeowners’ insurance is still important to protect her own investment in the home even though there is no lender to require it. The policy protects her if someone is hurt on the property, and pays to rebuild in the event of a fire or catastrophic storm. Good insurance coverage can help a homeowner sleep better at night.

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