Recently, the School of Government hosted its biennial Guardianship Proceedings for Appointed Counsel program, co-sponsored by the Office of Indigent Defense Services. The program brings together attorneys who serve as guardians ad litem (GALs) in incompetency and guardianship proceedings – a unique role in our judicial system if ever there was one.

During the program, we discussed the reality that in every proceeding, assumptions get made—by the parties, doctors, social workers, clerks, and GALs themselves—and we brainstormed how GALs can turn those moments into opportunities for more effective representation. I thought it could be useful to share some of the ideas discussed by the group and to welcome folks who were not in attendance to reach out and share their own ideas.

Spotting petitioner assumptions

Petitioners come before the clerk for a variety of reasons. Hopefully one reason is that they care about the respondent, though some petitioners have other motives as well. Nearly all petitioners have one thing in common, however: they think they are doing the right thing. GALs should pay attention to the petitioner’s mindset, to learn what assumptions the petitioner may be making, and to see how that could influence the proceeding. Some examples of common assumptions made by petitioners follow.

The kind heart. This petitioner genuinely cares for the respondent and wants what is best for that person. That matters! Do not let the fact, however, that a petitioner is kind or sensitive distract from your two critical roles: advocating for the respondent’s express wishes and making your own recommendations as to best interests. A kind heart is important, but it does not mean the person is necessarily correct in what they are trying to accomplish. Someone can be both kind and also wrong about capacity, for example. A person may be caring but also disorganized, forgetful, or just generally incorrect about what it takes to be a guardian. Be fair but have a discerning eye when fulfilling your roles as GAL.

The one who knows better. Sometimes, the petitioner may disagree with how the respondent is living their life. The petitioner may confuse that disagreement with an inability to manage personal affairs. A GAL should not fall into the same trap by assuming, for example, that a respondent who makes poor choices regarding their health or safety is necessarily incompetent. The question before the clerk is not, “Would I make these same decisions?” The pertinent question is whether the respondent has capacity to manage their affairs and to make and communicate important decisions concerning themselves, their family, and their property. G.S. 35A-1101(7).

The passive petitioner. The wonderful but also challenging truth about incompetency and guardianship proceedings is that they are simultaneously adversarial and collaborative in nature. Important rights are at stake, yet these proceedings are often comprised of a group of loved ones and professionals putting their heads together to find a solution that is in the respondent’s best interest.

Without diminishing that collaborative spirit, remember that GALs do not work for the petitioner, who has the burden of proving the allegations by clear, cogent, convincing evidence. A GAL may be helpful to a petitioner, subject to the respondent’s express wishes, the GAL’s recommendations, and the circumstances of the case. For example, the GAL’s experience and professional capacity may mean the GAL is better suited at obtaining records relevant to the hearing. If the GAL is able to work collaboratively with the petitioner without it coming at the cost of the respondent’s due process rights and wishes, that is a welcome development. Otherwise, GALs must not forget who they represent. GALs only represent the respondent and should not feel pressured by a petitioner who assumes all they had to do was file the petition and show up.

Common assumptions made by participants and clerks

“Guardianship is the only option.” Guardianship is the appropriate outcome for some respondents, but not for every respondent. A person should not be subjected to guardianship “unless it is clear that a guardian will give the individual a fuller capacity for exercising his rights.” G.S. 35A-1201(a)(4). GALs should investigate whether less-intrusive, more-empowering alternatives to guardianship—such as changes to living and care arrangements or executed power of attorney documents—are appropriate.

Sometimes, alternatives to guardianship exist within the proceeding itself. For example, limited guardianship would allow the respondent to retain certain rights and privileges, where appropriate. G.S. 35A-1212. GALs are statutorily charged with considering the appropriateness of limited guardianship. G.S. 35A-1107(c). Limited guardianship is also consistent with one of the primary purposes of guardianship: to preserve for wards the opportunity to exercise rights and apply judgment within their comprehension. G.S. 35A-1201(a)(5).

Single transactions and single protective arrangements offer alternative solutions in some cases (though, importantly, a respondent must be adjudicated incompetent for these tools to be available). G.S. 35A-1121. Consider, for example, a ward with no income and whose only asset is a car. There may be no need for a guardian of the estate to be bonded and appointed if the clerk enters an order appointing a special fiduciary authorized to sell the car and use the proceeds for the ward’s benefit.

“A person with this diagnosis is always incompetent.” In enacting Chapter 35A, the General Assembly intentionally did not draw a straight line from diagnosis to incompetency. Incompetency is defined as the inability to manage one’s affairs or to make and communicate important decisions, whether or not the lack of capacity is due to one of the listed conditions. G.S. 35A-1101(7). A diagnosis may be relevant evidence in an incompetency determination, but it is not controlling. GALs should be on alert for this mistaken assumption. GALs should also advocate for additional supports or accommodations that would allow a respondent to retain as much autonomy as possible.

“Social Services is always the best guardian.” Clerks may appoint an adult, a corporation, or a disinterested public agent (e.g., Social Services (DSS)) as guardian. G.S. 35A-1213(a). DSS’ access to resources and experience in guardianship sometimes means that appointing DSS as guardian is in the best interest of a ward. That conclusion should not be reflexively defaulted to, however. All options must be carefully vetted, by clerks and GALs. GALs must discuss possible guardians with their client.

When appointing a guardian, clerks must first consider any individual named in the ward’s will, followed in order of priority by a person (e.g., relative or friend), a corporation, and, finally, a disinterested public agent, like DSS. G.S. 35A-1214. DSS cannot be appointed guardian “until diligent efforts have been made to find an appropriate individual or corporation to serve.” Id. It may be in the respondent’s best interests for an imperfect but meaningful person to the respondent to be appointed as guardian if they can help the respondent exercise rights and manage property and personal affairs. See G.S. 35A-1201(a)(1).

Recognizing and responding to a respondent’s assumptions

Respondents are complex beings with their own personalities, mindsets, preferences, and prior experiences. Like all of us, respondents occasionally make assumptions. For example:

• “No one cares what I think. I have no say in what happens to me.”
• “No one can tell me what to do. I’m going home tomorrow.”
• “I can do everything myself; I do not need any help.”

GALs are the lynchpin between the proceeding and the person at the center of it. Explain to the respondent their rights and the possible case outcomes. Learn what the respondent wishes to see happen and find out why. Deliver hard truths but offer hope when possible. Reassure the respondent that they have a seat at the table, and then be the one who pulls that seat up and invites them to join.

Looking in the mirror: reflecting on a GAL’s own assumptions

None of us are immune from bringing our own biases, histories, and, yes, assumptions, to our work, including GALs. It can be easy to make assumptions and gloss over details, especially attorneys who are stretched thin. Try to pause and think about assumptions that may creep into your work; situations where you may have blinders on that make it easy to gloss over a potentially important fact or issue. A few examples are below.

Skipping the first stage. “Hi, I am your GAL. It is nice to meet you. So, your brother wants to be your guardian. Does that sound good?” These should not be your first words to your client, partly because it implies you have skipped the first step; that you assumed a petition having been filed means the respondent is incompetent. This may be the assumption to guard most carefully against. GALs should investigate incapacity allegations and discuss the issue with the respondent. What the GAL learns should serve as the basis of any recommendations to the clerk.

Observe petitioners, medical providers, social workers, and clerks, who may also assume incompetency. If they do, push back on that assumption. Fight to ensure that an adjudication of incompetency only follows a presentation of clear, cogent, and convincing evidence.

“It is the petitioner’s show.” This is true in that the petitioner has the burden of proof, but it is the GAL’s client, the respondent, who is the star of the show. It is the respondent whose rights, privileges, and autonomy are at stake, and who stands to be the most affected by the case. GALs should not assume their role is only to passively hear or respond to evidence. Yes, whenever appropriate, plan to combat the petitioner’s evidence, including cross-examination of the petitioner’s witnesses. But also prepare your client’s case. Work with the respondent to propose realistic dispositions that consider capacity, transportation, housing, and resources. Gather evidence to support the respondent’s express wishes and your best interests’ recommendations and prepare to lay a proper foundation for admission. Do not assume witnesses that you need present will be present. Think creatively and critically.

Lastly, keep up the great work you do in these proceedings on behalf of some of society’s most vulnerable people. Reach out to me at Heinle@sog.unc.edu if I can support your work or to share your own experiences like the ones raised in this post.