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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Tag: guardianship
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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
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Adult Protection MDTs: New Project Underway (and Help Needed!)
Over the last several years, the School of Government has developed new and exciting resources to support local multidisciplinary teams (MDTs) involved with protecting adults from abuse, neglect, and exploitation. An MDT is a group of professionals in a geographic region who commit to working together toward a common goal. An adult protection MDT may include, for example, social workers, law enforcement officials, prosecutors, legal services attorneys, guardians or guardians ad litem, representatives from community nonprofits, financial institutions, and area agencies on aging.
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More on Single Protective Arrangements and Single Transactions under G.S. Chapter 35A
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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The New Clerks’ Manual Website is Here!
I’m excited to announce the launch of two major things today.
First, the new North Carolina Clerk of Superior Court Manual Series website is now available at www.sog.unc.edu/clerksmanual.
We took the old clerks’ manual and gave it a complete make-over in response to feedback we received from clerks of superior court. It is no longer a printable PDF volume but now is an online manual series, featuring the following eight manuals organized by subject matter:
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Single Transactions and Protective Arrangements: A New Tool in Guardianship Proceedings and a Lot for GALs to Consider
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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There’s a New G.S. 35A-1121 in Town
John was adjudicated incompetent in a court proceeding three years ago. The court found that John lacked the capacity and needed the assistance of a guardian. At the time of the adjudication, John did not own any assets that required management by a guardian of the estate. Therefore, the court appointed only a guardian of the person to assist John in making decisions related to his health care, housing, and other personal matters. Last year, John was entitled to receive a stimulus payment from the government. His guardian of the person is not authorized by law to negotiate the check and use the funds on his behalf. Prior to October 1, 2021, the guardian of the person (or some other interested person) would have to go through a multi-step process to have the court appoint a guardian of the estate who could use the funds on John’s behalf. This process may have included multiple court hearings and modifications of the guardianship to appoint and then discharge a guardian of the estate. In addition to taking up time, it would create expenses for John in the form of court costs, a bond, and, in some cases, attorneys’ fees. Those expenses could ultimately be more costly than the amount that John was entitled to receive from the stimulus payment.
As of October 1st, there is an alternative path for John under the new North Carolina statute, G.S. 35A-1121. It authorizes the court to order a single protective arrangement or single transaction for the benefit of a minor or incompetent person where it is established in a proper proceeding that a basis exists for the appointment of a guardian for a minor or an incompetent person. G.S. 35A-1121(a). “Incompetent person” includes adults, emancipated minors, and minors age 17 ½ or older who are adjudicated incompetent. G.S. 35A-1202(11). This post discusses some of the key features of G.S. 35A-1121, which was enacted as part of Session Law 2021-53. Continue Reading