Meet Mike. Following a recent stroke, Mike is allegedly no longer able to make and communicate important decisions about himself, his family, or his property. Mike’s wife has filed a petition pursuant to Chapter 35A of the North Carolina General Statutes (Chapter 35A) seeking to have Mike adjudicated incompetent and to have herself appointed as Mike’s guardian. In addition to his wife, Mike’s family members include Mike’s father, sister, and estranged son. Mike also has a best friend who lives next door.
Chapter 35A requires that a petitioner identify in the petition the respondent’s next of kin and others known to have an interest in the proceeding (G.S. 35A-1106(5)) and, within five days of filing the petition, to mail, by first-class mail, next of kin alleged in the petition copies of the notice of rights, the petition, and the initial notice of hearing (G.S. 35A-1109(a)). This post addresses a set of questions that I regularly receive about next of kin and a guardian ad litem attorney (GAL) appointed to represent a respondent pursuant to G.S. 35A-1107. Under what circumstances may a GAL communicate with the respondent’s next of kin, and what can they discuss? What should a GAL consider when deciding whether to communicate with next of kin? And how may information a GAL learns from next of kin be used at trial?
Who is a respondent’s next of kin?
Chapter 35A does not define the term next of kin. But see Black’s Law Dictionary (12th ed. 2024) (defining next of kin as the group of people “most closely related to a decedent by blood or affinity” and anyone who would be entitled to inherit property from an intestate decedent, also referred to as a “nearest relative”). The term next of kin likely includes a respondent’s children, siblings, parents, and spouse, if any. For Mike, who we met in the introduction to this post, his identified family members are next of kin, including Mike’s son, despite their estrangement. Mike’s best friend would not seem to be included, even though the two are close. (Note that the clerk has the authority to require that notice of the hearing also be mailed, using first class mail, to other persons designated by the clerk. G.S. 35A-1109(a). A GAL appointed to Mike may determine that Mike’s friend is an important support for him, and that he would benefit from having his friend present at the hearing. Or perhaps the friend has relevant information about the central issues of the case. Or the GAL may determine that it would be in Mike’s best interest for Mike’s friend to serve as guardian. If so, the GAL may file a motion with the clerk requesting the clerk enter an order designating Mike’s friend be mailed the notice of hearing.)
For a review of how the term next of kin has been interpreted in other contexts, see Ann M. Anderson and Joan G. Brannon, Incompetency and Guardianship, ch. 1, Incompetency Determinations at 1.5 – 1.6, North Carolina Clerk of Superior Court Manual Series, UNC School of Government (Updated August 31, 2011).
The GAL’s role and the Rules of Evidence in an incompetency proceeding
The answers to the questions about GALs and next of kin raised in the introduction to this post depend on the type of proceeding (incompetency or guardianship) and the duties of the GAL.
A GAL is appointed to a respondent to fill two roles. First, a GAL is the attorney for the respondent. G.S. 35A-1107(c). As the respondent’s attorney, the GAL’s duties include:
- personally visiting the respondent as soon as possible;
- making every reasonable effort to determine the respondent’s wishes regarding both incompetency and any proposed guardianship;
- explaining the notice of rights provided to the respondent under G.S. 35A-1117; and
- presenting to the clerk the respondent’s express wishes at all relevant stages of the proceedings.
Id.
Like attorneys in other types of cases, to prepare for trial a GAL should communicate with their client, develop a case strategy, gather evidence (including identifying potential witnesses and obtaining relevant documents), and anticipate arguments. As part of this preparation, there are many reasons that a GAL may want to communicate with next of kin. Doing so may give the GAL a fuller understanding of the respondent, including the respondent’s health and life history, what he is and is not capable of, and the nature of his relationships with others. For example, Mike’s GAL may learn more from next of kin about Mike’s medical history, the reason that Mike and his son are estranged, or what family members or friends consistently support and care for Mike.
But a GAL needs to be mindful of two important facts. First, the North Carolina Rules of Evidence apply at adjudication in an incompetency proceeding. N.C. R. Evid. Rule 1101(a) (rules generally applicable unless excepted by statute); G.S. 35A-1112 (providing adjudication procedures without stating that the Rules of Evidence do not apply); see also Matter of R.D.B., 274 N.C. App. 374 (2020) (holding in the context of a guardianship of a minor proceeding that the Rules of Evidence apply, as the legislature did not except Chapter 35A minor guardianship proceedings either in the exceptions listed in Rule 1101(b) or by other statute). Second, the professional and ethical duties imposed by the North Carolina Rules of Professional Conduct apply to a GAL whose client has not retained counsel and who is acting in a dual-role capacity. See generally G.S. 35A-1107 (appointment and roles of a GAL); see also N.C. Rules of Prof’l Cond., 0.2 Scope, cmt [4]; 2004 FEO 11, Opinion #2 (January 21, 2005) (holding in a juvenile matter that the Rules apply to a lawyer who serves as both the attorney and GAL for the same incompetent respondent).
This all means several things for Mike’s GAL when preparing for trial and when at adjudication. First, it means that Mike’s GAL is acting as Mike’s attorney and not as an investigator. See G.S. 35A-1107(c). Therefore, the GAL should inform Mike of the GAL’s plan to communicate with next of kin and should obtain Mike’s informed consent. N.C. Rules of Prof’l Cond. 1.6(a) (generally requiring that a lawyer obtain the client’s informed consent before revealing information acquired during the professional relationship). Whenever feasible, a client should be informed and consulted by their attorney and given the opportunity to make case decisions, including the objectives of representation and how they are to be pursued. N.C. Rule of Prof’l Cond., r. 1.2 (scope of representation and allocation of authority between client and lawyer).
A limited exception to the general requirement of confidentiality does apply, however, where a lawyer reasonably believes that the client (i) has diminished capacity, (ii) is at risk of substantial harm unless action is taken, and (iii) cannot sufficiently act in the client’s own interest. N.C. Rule of Prof’l Cond., r. 1.14(b). There, “the lawyer may take reasonably necessary protective action, including consulting with individuals…that have the ability to take action to protect the client, and, in appropriate cases, seeking the appointment of a [] guardian.” Id. So, if the conditions under Rule 1.14 are met, Mike’s GAL may communicate with others, including next of kin, in the pursuit of protective action for Mike. However, even where this exception applies, Mike’s GAL may only reveal information to the extent reasonably necessary to protect Mike’s interests. N.C. Rule of Prof’l Cond., r. 1.14(c). Mike’s GAL is not authorized to share everything with everyone and must strive to maintain as normal a client-lawyer relationship as possible. N.C. Rule of Prof’l Cond., r. 1.14(a).
The information a GAL can present to the clerk at adjudication is similarly informed by the GAL’s role as the attorney for the respondent and the Rules of Evidence. In advocating for Mike’s express wishes pursuant to G.S. 35A-1107(c), the GAL may need to offer evidence, including testimony from next of kin or others. That is the lens through which Mike’s GAL should be viewing communication with Mike’s next of kin: to prepare for trial and to gather evidence, including identifying potential witnesses. The GAL cannot simply attend adjudication and repeat what next of kin have told the GAL. This is because (i) the GAL is serving as the attorney for the respondent, and (ii) hearsay is generally inadmissible. N.C. R. Evid. Rule 802. Either next of kin will need to testify, or an exception to the prohibition on hearsay will need to apply that would allow those statements in through someone or something else. See generally N.C. R. Evid. Rules 803-804 (hearsay exceptions).
Sometimes next of kin will act as the petitioner in a case, such as in our example with Mike and Mike’s wife. As the respondent’s attorney, the GAL may want to speak to the petitioner (or their attorney, if any) to advocate for the dismissal of the petition, to explore available less restrictive alternatives under G.S. 35A-1101(11a), or to seek other favorable outcomes for the respondent. Again, this should be done consistent with the relevant Rules of Professional Conduct, including those that govern communication and confidentiality.
The GAL’s role and evidence in a guardianship proceeding
If a respondent is adjudicated incompetent, the clerk then considers whether a guardianship arrangement is appropriate and is in the individual’s best interest. G.S. 35A-1120 (appointment of a guardian); see generally Chapter 35A, Art. 5 (appointment of guardian for incompetent person). Regarding GAL communication with next of kin, some of the same considerations in an incompetency proceeding apply in a guardianship proceeding, but there are important differences, too.
The GAL’s role morphs a bit in this proceeding. Mike’s GAL is still Mike’s attorney, meaning he still advocates for Mike’s express wishes. G.S. 35A-1107. Mike’s GAL must still prepare for trial, gather information, and present evidence to the clerk. However, Mike’s GAL is now also authorized to make recommendations that are consistent with Mike’s best interests but that differ from Mike’s express wishes. Id.
The Rules of Professional Conduct, including those regarding communication and confidentiality, still apply to Mike’s GAL. See N.C. Rules of Prof’l Cond., 0.2 Scope, cmt [4]; see also 2004 FEO 11, Opinion #2 (January 21, 2005). Like before, if Mike has diminished capacity and the conditions of Rule 1.14 are satisfied, his GAL may reveal otherwise confidential information to the extent reasonably necessary to pursue protective action. N.C. Rule of Prof’l Cond., r. 1.14(c). However, in a guardianship proceeding, Mike’s GAL arguably has greater discretion to reveal information acquired during the professional relationship with Mike because the statutory duties of the GAL now potentially include making best interest recommendations. G.S. 35A-1107(c); see also (N.C. Rule of Prof’l Cond., r. 1.6(a) and r. 1.6(b)(1) (disclosure permitted if impliedly authorized to carry out the representation and to comply with the law).
Another difference in a guardianship proceeding pertains to evidence and the applicability of G.S. 35A-1212(a) which provides that the clerk shall “receive such evidence as the clerk deems necessary to determine…[t]he nature and extent of the needed guardianship…[t]he assets, liabilities, and needs of the ward…[and who], in the clerk’s discretion, can most suitably serve as the guardian or guardians”). Chapter 35A does not make clear whether the Rules of Evidence apply in a guardianship proceeding. But see N.C. R. Evid. Rule 1101(a) (rules generally applicable unless excepted by statute); Matter of R.D.B., 274 N.C. App. 374 (2020) (holding in the context of a guardianship of a minor proceeding that the Rules of Evidence apply, as the legislature did not except Chapter 35A minor guardianship proceedings either in the exceptions listed in Rule 1101(b) or by other statute). While there may be some uncertainty regarding the applicability of the Rules of Evidence in this proceeding, GALs should anticipate objections and unfavorable rulings on evidence and admissibility, and should seek to offer clearly admissible evidence where possible.
The result of all of this is that Mike’s GAL may be gathering and presenting evidence in support of two different goals: to advocate for Mike’s express wishes and to support the GAL’s recommendations as to Mike’s best interests. It is an unavoidably difficult and at times confusing duality. But in preparing for the guardianship proceeding, a GAL should seek information about the client’s wishes regarding guardianship, the best arrangement for the client, and the suitability of potential guardians. A GAL should also consider how to present this information to the clerk. For example, if Mike is competent to testify and can express his wishes regarding guardianship, Mike may be called as a witness. Or, if Mike can no longer express his wishes but his GAL learns that Mike previously told his sister and his friend that he wanted his sister to serve as guardian (and not his wife due to her own health issues), Mike’s sister and friend may be called to testify.
I am often asked whether a GAL in a guardianship proceeding may provide this information to the clerk directly, either through testimony or a report. To the frustration of many, the answer to that question is unclear. But given the (i) GAL’s role in making best interest recommendations (G.S. 35A-1107(c)), and the (ii) exceptions to an attorney’s duty of confidentiality discussed earlier in this post (N.C. Rule of Prof’l Cond., r. 1.6(a), 1.6(b)(1), and 1.14(c)), a GAL is arguably authorized to reveal information to the extent reasonably necessary to protect the ward in a guardianship proceeding. Given the lack of certainty, however, and because the GAL is still the attorney for the ward, a GAL should consider whether other forms of evidence may be offered to provide the clerk with relevant information as to best interests.
Parting thought
One last note about next of kin and communication with a GAL. Often it is next of kin who initiate contact with a GAL. These folks hopefully have the respondent’s interest at heart, but regardless of their motivation, a GAL only represents the respondent. If next of kin want to speak with a GAL, the GAL should attempt to obtain the client’s consent and clarify for next of kin the GAL’s role. Also, if a family member or friend is overly demanding of the GAL’s time or is acting counter to the client’s interests, the GAL may establish boundaries around their communication.
Reach out to me at Heinle@sog.unc.edu with questions or to discuss issues in your cases anytime. My guide, The First Seven Days as a Guardian ad Litem in an Incompetency Proceeding, is available free online and offers strategies for appointed GALs in their work.
