Navigating the legal requirements applicable to adult protective services (APS) court proceedings can be challenging, given the expedited nature of the cases, the different types of orders the court may issue, and the varying legal standards and timelines that apply to each order. The urgent and often emergency-driven nature of APS cases adds further complexity to the process. That’s why we developed a new resource designed to assist county department of social services (DSS) directors, social workers, and attorneys—along with court officials and other professionals involved in APS —better understand the essential steps in a court proceeding to obtain an order for APS protective and emergency services.
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Tag: guardianship
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The 2024 Adult Protection Multidisciplinary Team Booster Shot Series: Key Takeaways
*This post was written by Adult Protection Network Director Kristy Preston.
Earlier this year, the UNC School of Government’s Adult Protection Network held six training events known as the “2024 Adult Protection Multidisciplinary Team Booster Shot Series” in regional locations across North Carolina including Transylvania, Alexander, Guilford, Robeson, Onslow, and Beaufort counties. The series aimed to foster collaboration, share resources, and address common challenges faced by adult protection multidisciplinary teams (MDTs). An MDT is a group of professionals in a geographic region who commit to working together toward a common goal. An adult protection MDT works to find ways to prevent and respond to adult abuse, including physical, emotional, and sexual abuse, self-neglect and caretaker neglect, and exploitation, including financial exploitation.
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New Resources for Protecting Vulnerable Adults in North Carolina
In state fiscal year 2022-2023, county departments of social services in North Carolina received 35,400 reports alleging the abuse, neglect, or exploitation of vulnerable adults. Fifty-six counties across the state have addressed this problem through creating adult protection multidisciplinary teams (MDTs)—groups of professionals from different disciplines who work together to prevent and respond to abuse, neglect, and exploitation of disabled and/or older adults. An additional 38 North Carolina counties are currently working to form adult protection MDTs. The School of Government’s Adult Protection Network is excited to announce a redesigned Adult Protection Network website with new resources for those in the adult protection field, including new online trainings and an MDT Toolkit with template documents for adult protection MDTs.
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Less Restrictive Alternatives and Incompetency Restoration Proceedings
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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Guardians: Don’t Forget to File a Notice of Change of Address with the Court
Adult guardianship law in North Carolina underwent several significant changes effective January 1, 2024. My colleague, Timothy Heinle, and I previously blogged about two of these changes resulting from Session Law 2023-124, available here (notice of rights) and here (less restrictive alternatives). One change that may have slipped under your radar is found in G.S. 35A-1242(e) and imposes a new obligation on guardians to file a notice of change of address with the court.
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Change is Coming: The Consideration of Less Restrictive Alternatives in Adult Guardianship Proceedings Mandated by S.L. 2023-124
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
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
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
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Apply Now for the Upcoming Adult Protection Multidisciplinary Team Workshop
Someone once told me that to get people really interested in a meeting you need to either make it free to attend or provide food. Well, thanks to funding from the North Carolina Judicial College, we are doing both for an upcoming workshop at the School of Government. It will be held March 2-3, 2023, and will bring together diverse stakeholders from around North Carolina to begin the process of forming and developing adult protection multidisciplinary teams (MDTs). Each team may send up to seven people to participate in the workshop. The application period is now open and runs through January 13, 2023. You can learn details about the workshop and apply here.
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Incapacity to Proceed (G.S. Chapter 15A) and Incompetency (G.S. Chapter 35A): Apples and Oranges?
Incapacity to proceed under North Carolina General Statutes (G.S.) Chapter 15A and incompetency proceedings under G.S. Chapter 35A involve, at least in part, a court inquiry into someone’s cognitive abilities. Incapacity to proceed is narrowly focused on a person’s cognition within a criminal legal proceeding. Incompetency is a bigger picture analysis, more broadly focused on the individual’s life and needs, with a bit of forward-looking involved. In that way, incompetency is concerned with both a person’s cognitive abilities and their functioning.
These proceedings are separate and distinct from one another. Yet, if a client has history or present involvement in both, the client’s attorney in one proceeding should know about and understand the other. That attorney may want, for example, to access information or introduce evidence from the other proceeding. The attorney will want to consider issues such as information sharing and confidentiality, and the admissibility or other uses of records from one proceeding in the other.
These issues may be the subject of future posts. First, however, we need to understand incapacity to proceed under G.S. Chapter 15A and incompetency under G.S. Chapter 35A. This post provides a primer on incapacity and incompetency proceedings and compares the standards for each. Continue Reading