Archive

Tag: Incompetency
  • 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

  • A Reminder: In Most Cases, Judges Can’t Serve as Court-Appointed Fiduciaries

    The clerk of superior court, as the ex officio judge of probate in North Carolina, has original and exclusive jurisdiction over the appointment and removal of certain fiduciaries. See G.S. 7A-241. This includes the executor or administrator of a decedent’s estate (also known as the personal representative), the trustee of a trust, and a guardian of an incompetent adult or minor child’s estate. G.S. 28A-2-4(a)(2) (estate); G.S. 36C-2-203(a)(1) (trust); G.S. 35A-1203 (guardianship).  When determining whether to appoint or remove these fiduciaries, the clerk must determine whether the person applying to serve in that capacity is qualified to serve.  For example, a person may not serve as executor of an estate who is under the age of 18, who is a convicted felon whose rights have not been restored, or who is found to be otherwise unsuitable by the clerk. G.S. 28A-4-2(1), (3), (9).

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

     

    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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  • Incompetent Wards and the Sex Offender Registry

    I received an interesting question recently when I taught about the intersection of criminal defense and Chapter 35A incompetency. Suppose a person is adjudicated incompetent in a Chapter 35A proceeding and a guardian is appointed. Suppose that same person had been convicted of a crime requiring registration as a sex offender and compliance with the other obligations of Chapter 14, Article 27A. The person is required to register changes to their address (including providing notice to law enforcement of an intention to move out-of-state), to their academic and employment status, and to notify the State of changes to their name or online identifiers, including e-mail addresses. G.S. 14-208.7; G.S. 14-208.9. What effect does declaration of incompetency have on these registration requirements? Who is responsible for ensuring that the incompetent adult complies with these registration obligations—the adult or their guardian?

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

    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

  • Temporary Changes to Service on the Respondent in Incompetency Proceedings

    A heightened level of service is required on a respondent to an incompetency proceeding in North Carolina.  G.S. 35A-1109 requires copies of the petition (SP-200) and the notice of hearing (SP-201) to be personally served on the respondent (the alleged incompetent adult).  As my colleague, Ann Anderson, discussed in an earlier post, because the use of private process servers is very limited in North Carolina, personal service is completed on the respondent by the sheriff in most cases.  Under the version of G.S. 35A-1109 in effect prior to May 4, 2020, service was not proper if the notice and petition were sent by FedEx, UPS, or regular mail or left with a family member at the respondent’s home or with a caregiver at a facility where the respondent resides. This heightened requirement of service on the respondent ensures that the respondent knows of the proceeding and knows the location, date, and time of the hearing. It reflects the significant impact an adjudication of incompetency has on a person’s rights to make decisions about his or her life and property. Continue Reading

  • Guardian ad Litem Attorney Challenges in the Era of COVID-19

    The goal of this post is to identify key challenges facing Chapter 35A Guardian ad Litem (GAL) Attorneys in the COVID-19 era and to propose strategies for addressing those challenges.

    GAL Access to Respondents

    A fundamental responsibility of GALs in incompetency proceedings is that they “shall personally visit the respondent as soon as possible” after being appointed. G.S. 35A-1107(b). With many facilities restricting visitors currently, GALs are finding it difficult, if not impossible, to meet respondents in person. GALs attempting to visit a respondent should bring with them their appointment paperwork and a copy of G.S. 35A-1107 to show the facility. If a GAL feels it is vital to meet the respondent in person, but is denied access by a facility, consider filing a motion to address access issues with the clerk and subpoena the facility staff to the hearing.

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