On September 20, 2023, Senate Bill 615 became Session Law 2023-124, enacting a significant number of changes to North Carolina’s existing incompetency and guardianship laws. The changes modified the definitions in G.S. Chapter 35A of key terms, added a requirement of all parties and the court to consider less restrictive alternatives to guardianship, created a new notice of rights (and with it, new obligations for guardian ad litem attorneys (GALs) and others), changed the standards applicable to the assessment of costs and fees, and more.  This post will explore one of these changes, the new notice of rights requirement, and will consider the practical implications for GALS. At the end of this post, you will find information about upcoming School of Government blog posts and webinars on the legislative changes resulting from S.L. 2023-124.

Notice of Rights

When? The new requirements related to the notice of rights are effective January 1, 2024, and apply to incompetency petitions filed under G.S. Chapter 35A on or after that date.

What? The law creates the new G.S. 35A-1117 and entitles respondents and wards to notice of nearly twenty enumerated rights. You can read the full notice and list of rights here, beginning at the bottom of page 7. Some of the rights listed for respondents include the right to

• notice of the incompetency petition, the initial notice of hearing, and the notice of rights before the hearing,
• an attorney,
• gather and present evidence,
• have a hearing on a petition for incompetency within 10 and 30 days after service on the respondent unless the court finds good reason to continue the hearing,
• attend the hearing,
• have the hearing be closed to anyone who is not directly involved or testifying at the hearing,
• have a jury hear the case,
• tell the court what rights the respondent would like to keep in the event the clerk grants the incompetency petition,
• express their wishes about their rights and who serves as guardian,
• appeal a decision adjudicating the respondent incompetent by filing written notice of appeal within 10 days of the clerk entering the order, and
• appeal a decision about who is appointed as guardian by filing a written notice of appeal within 10 days of the order being served on the respondent.

Several of the enumerated rights apply after an individual is adjudicated incompetent, like the right to

• a qualified, responsible guardian,
• seek a transfer to another county for good reason,
• seek a modification to the guardianship due to a change in circumstances, and
• request a restoration of competency where circumstances have changed such that the ward believes they can show to the court that they have regained their competency.

The notice of rights also addresses an incompetent person’s right to drive and to marry. G.S. 35A-1117(7), (8).

Note that GALs are required to explain the notice of rights under G.S. 35A-1117 as part of their representation of a respondent or ward, regardless of what stage in the proceeding they are appointed. GALs appointed to represent allegedly incompetent respondents in response to the filing of a petition are required to explain the notice of rights pursuant to modified G.S. 35A-1107. GALs appointed following the adjudication of incompetence to represent a ward—for example, on the appointment of a guardian or on a motion to modify guardianship—are required to explain the notice of rights to the ward pursuant to modified G.S. 35A-1217. If the same GAL represents the individual named in the petition at both the incompetency and guardianship stages of the proceeding, the GAL must address the notice of rights with their client at each stage.

The enumerated rights provided in G.S. 35A-1117 are not new. Under current laws, respondents already have each of these rights. For example, respondents have a right to counsel, to a trial by jury on an incompetency petition, and to present documentary and testimonial evidence to the court. G.S. 35A-1107, -1110, -1112(b). What is new is that respondents are entitled to receive notice of these rights. As a result, there are also new requirements and processes surrounding the notice of rights.

How? Currently, respondents must be personally served with a copy of the petition and the initial notice of hearing. G.S. 35A-1109. This will still be required moving forward. For all incompetency petitions filed on or after January 1, 2024, however, a copy of the notice of rights of respondents must be included in the personal service on the respondent. Id. A notice of rights form will be created by the Administrative Office of the Courts, in both English and Spanish. G.S. 35A-1117(b). GALs must be served with a copy of the notice of rights, the petition, and the initial notice of hearing pursuant to G.S. 1A-1, Rule 4 of the Rules of Civil Procedure. Within five days of filing the petition, the petitioner must also serve by first-class mail copies of the notice of rights, the petition, and the initial notice of hearing on the respondent’s next of kin and anyone else designated by the clerk. Id. Clerks presiding over these proceedings should confirm that all service requirements, including service of the notice of rights of the respondent, were complied with before beginning a hearing on an incompetency petition.

As has been the case, appointed GALs must personally visit the respondent as soon as possible to determine the respondent’s wishes regarding incompetency and guardianship. G.S. 35A-1107(c). For petitions filed on or after January 1, GALs must explain the notice of rights to the respondent as part of that initial visit. Id. It is common for respondents to have questions for GALs throughout the life of a proceeding, beyond that initial meeting. Respondents may want to know whether they get a say in who will serve as guardian. Or respondents may ask GALs what to expect on the day of the hearing. GALs should continue to provide information and to advise respondents throughout the course of the proceedings. As part of that representation, GALs are now specifically required to explain the notice of rights to a respondent during the initial visit and at any time upon request by the respondent. G.S. 35A-1117.

Practical considerations for GALs. New duties for GALs bring questions about how to effectively carry out these responsibilities. How do GALs inform respondents of their rights in a way that respondents will understand? Again, the rights are not new. But by compiling and codifying the notice requirements for the rights of a respondent, the legislation has the effect of highlighting these rights. As always, GALs will need to be mindful of how they most effectively can inform and empower their clients. A lot of information is contained in the notice and respondents allegedly lack capacity. What language should GALs use to summarize the information? What else should GALs be prepared to do to effectively carry out their role considering this new legislation?

There are other considerations, too. As discussed above, GALs must explain the notice of rights to their client at both the adjudicatory phase and guardianship phase, and at any time the client requests explanation. G.S. 35A-1107; G.S. 35A-1217. But GALs are not limited to only those times to discuss these important issues with their client. For example, if the individual is adjudicated incompetent, some rights, like the right to an appeal or the effect of an adjudication of incompetency on an individual’s right to marry or to vote, may make sense to discuss again near or at the conclusion of the GAL’s representation. Lastly, reviewing the notice of rights may be a good opportunity to reconsider some of the points a GAL is responsible for discussing with a respondent that may be easily overlooked—like the possibility of a closed hearing—and how to incorporate those discussions into your work.

Upcoming SOG resources for GALs and clerks

Over the coming months and before the legislation’s effective date of January 1, 2024, Meredith Smith and I will publish blog posts and offer webinars focused on this new legislation. These resources will be of particular interest to GALs, clerks of superior court who preside over incompetency and guardianship proceedings, and other professionals whose work touches on these proceedings. Here is a schedule of our upcoming resources designed to help you navigate these changes in your work:

• October 25 – my blog on the new notice of rights for respondents. (That is this post! You’re already reading it. Nice work.)
• November 21 – Meredith’s post on less restrictive alternatives to guardianship requirements.
• December 7 – our first webinar will dive deeper into the practical implications of the notice of rights and will work through some commonly raised questions about the new requirements.
• December 14 – our second webinar will focus on strategies for meaningful implementation of the consideration of less restrictive alternatives to guardianship.
• January 2024 – Meredith and I will publish a blog that covers the remaining guardianship changes from S.L. 2023-124 and answers additional questions raised during the webinars.

Mark your calendars! Both webinars will be scheduled for 3:00 p.m. and we expect them to last roughly 75 minutes each. Registration details will be announced soon on the various SOG listservs as well as on the SOG’s upcoming courses webpage and our Public Defense Education microsite under Upcoming Trainings.

Please email us at Heinle@sog.unc.edu or Meredith.Smith@sog.unc.edu with questions, concerns, or ideas that you have about the new legislative changes to guardianship and that you would like for us to address. Hope to see you on the webinars!