Archive

• Less Restrictive Alternatives and Incompetency Restoration Proceedings

  This entry was contributed by Timothy Heinle on April 3, 2024 at 9:57 am and is filed under Guardianship, Incompetency.

  In North Carolina, when an adult is adjudicated incompetent and guardianship is ordered, guardianship is permanent until the first of these two developments occur: (i) the ward’s competency is restored, or (ii) the ward dies. G.S. 35A-1295(a).

  The recently enacted Session Law 2023-124 amended the definition of incompetency and introduced requirements to ensure the consideration of less restrictive alternatives (LRAs) before a petition for incompetency can be granted. These statutory changes are born out of a recognition of the seriousness of declaring someone incompetent, and to encourage, where appropriate, the use of alternative arrangements that impose less restrictions than plenary guardianship. The changes are effective as to petitions filed on or after January 1, 2024.

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• Change is Coming: The Consideration of Less Restrictive Alternatives in Adult Guardianship Proceedings Mandated by S.L. 2023-124

  This entry was contributed by Meredith Smith on November 22, 2023 at 7:00 am and is filed under Guardianship.

  Significant changes are on the way for individuals, legal practitioners, and public officials involved in North Carolina incompetency and adult guardianship proceedings. The recently enacted Session Law 2023-124 mandates the consideration of less restrictive alternatives (LRAs) to guardianship prior to an adjudication of incompetency. There is a lot to cover on this topic; more than can fit in a single blog post. As a result, this post will focus on (i) introducing the statutory changes brought about by this new law and (ii) highlighting some key things the parties and the court will need to do differently with respect to petitions filed on or after January 1, 2024. S.L. 2023-124, sec. 7.13.

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• S.L. 2023-124: Changes to Guardianship Statutes, Notice of Rights, and Details on Upcoming SOG Resources

  This entry was contributed by Timothy Heinle on October 26, 2023 at 10:30 am and is filed under Guardianship, Incompetency.

   

  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.

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• Challenging Assumptions in Incompetency Proceedings: Ideas for Guardians ad Litem

  This entry was contributed by Timothy Heinle on February 15, 2023 at 11:10 am and is filed under Guardianship, Incompetency.

  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. Continue Reading

• Ongoing Support for Adult Protection Multidisciplinary Teams Now Available Through the School of Government Help Desk

  This entry was contributed by Meredith Smith on November 11, 2022 at 2:56 pm and is filed under Social Services.

  Over the past few years, faculty and staff at the School of Government collaborated with public officials across the state to develop resources and tools related to the growth and development of adult protection multidisciplinary teams (MDTs).  An adult protection MDT is a group of professionals in a geographic region who work together toward common goals related to preventing and responding to abuse, in any of its forms (physical, emotional, and sexual abuse; self-neglect and caretaker neglect; and exploitation, including financial exploitation).

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• New Ethics Opinion on Dual Role GAL–Attorney Advocates in Juvenile Proceedings

  This entry was contributed by Timothy Heinle on August 17, 2022 at 10:45 am and is filed under Child Welfare Law, Juvenile Law, Social Services.

  This post was updated on September 6, 2022 in response to helpful reader feedback regarding the nuances that exist when determining whether there is a conflict of interest for a GAL program and, if so, the possible options available to cure that conflict. The amended portion can be found in the Conflicts of Interests section below. 

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• More on Single Protective Arrangements and Single Transactions under G.S. Chapter 35A

  This entry was contributed by Timothy Heinle, Meredith Smith on April 20, 2022 at 1:21 pm and is filed under Clerks of Superior Court, Guardianship.

   

  Recently, the School of Government offered a webinar on single protective arrangements and single transactions under G.S. 35A-1121, which was enacted into law by Session Law 2021-53 and applies to proceedings initiated on or after October 1, 2021. Meredith Smith and Timothy Heinle of the School of Government joined Catherine Wilson, an attorney with McPherson, Rocamora, Nicholson, Wilson & Hinkle, PLLC, and Matt Kraus, legal counsel with the N.C. Administrative Office of the Courts, to discuss some of the key questions and issues raised by this new law. Clerks of superior court, guardian ad litem attorneys, private attorneys, and directors, attorneys, and social workers from various departments of social services across the state participated in the webinar.

  A recording of the webinar can be found here, where the presentation can be viewed for free. In the coming weeks, the video will be added to the online training library  for the SOG’s Public Defense Education group, which will offer the option of purchasing access to the webinar for CLE credit.

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• Single Transactions and Protective Arrangements: A New Tool in Guardianship Proceedings and a Lot for GALs to Consider

  This entry was contributed by Timothy Heinle on February 3, 2022 at 9:45 am and is filed under Guardianship.

   

  Effective for all incompetency and guardianship proceedings filed after October 1, 2021, S.L. 2021-53 (S 50) created a new statute, G.S. 35A-1121, that enables clerks to authorize a single transaction or protective arrangement—without appointing a guardian. I have received a lot of consults on the new law since it passed. It is not intended to be a magic wand. The law is a tool—one that may prove effective when used in the right situations. To make sure their clients remain protected, GALs need to understand what the law is and is not.

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• The Conservatorship of Britney Spears and a Ward’s Right to Petition for Restoration of Competency

  This entry was contributed by Timothy Heinle on July 7, 2021 at 12:30 pm and is filed under Guardianship.

   

  Britney Spears and the details of her conservatorship—the California equivalent of incompetency and guardianship in North Carolina—have recently been front page news, leading people to reach out to me with questions. While the case is remarkable, in part because of Ms. Spears’ fame and the massive amounts of wealth involved, the themes and central issues are familiar to those who handle these types of cases. Allegations of abuses of power, bitter family disputes, and pleas for autonomy and a return to normalcy, are not uncommon in incompetency and guardianship proceedings. Still, there are important lessons in Ms. Spears’ case for attorneys who handle guardianship work in North Carolina, including guardian ad litem attorneys in Chapter 35A proceedings.

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• The Initial Guide in a New Series: The First Seven Days

  This entry was contributed by Timothy Heinle on April 22, 2021 at 5:54 pm and is filed under Guardianship, Uncategorized.

  The UNC School of Government’s Public Defense Education group is excited to announce a new series of practice guides, The First Seven Days, by Timothy Heinle, Civil Defender Educator. The guides offer practical tips and strategies for respondent’s attorneys in various civil proceedings to use during the first several days of representation. The ideas suggested in the guides are designed to help busy attorneys hit the ground running in ways that reduce stress for the attorney and improve representation for the client.

  The first entry in the series is The First Seven Days as a Guardian ad Litem in an Incompetency Proceeding. It includes ideas on creating files, client outreach, investigation tools, report writing, and more. Guardian ad litem attorneys in Chapter 35A proceedings can obtain the guide in three ways. Continue Reading