This blog post originally appeared here and is written by Chris Wilms at Hopler, Wilms, & Hanna, PLLC.
Effective January 1, 2024, significant statutory changes are set to impact North Carolina’s adult guardianship laws. These changes to legal guardianship for adults in North Carolina, outlined in Senate Bill 615 (Session Law 2023-124), bring about crucial modifications to existing incompetency and guardianship regulations.
Read on for an in-depth look at one key aspect of these changes – the new Notice of Rights requirement – and its implications, especially for Guardian ad Litem attorneys (GALs).
Notice of Rights
Commencing on January 1, 2024, the new amendment introduces the new G.S. 35A-1117, granting respondents and wards notice of nearly twenty enumerated rights regarding legal guardianship for adults
This new section of the law is significant because it gives certain rights to individuals involved in legal processes related to incompetency. Incompetency here refers to a person’s inability to manage their own affairs due to various reasons like mental illness or disability.
These rights span from the initial notice of an incompetency petition to the rights of adjudicated incompetents, covering various aspects such as the right to legal representation, hearings, appeals, and even the right to marry and drive.
Some of the rights listed for respondents include the right to:
- Notice of the incompetency petition
- Notice of the initial notice of hearing
- An attorney
- Notice of rights before the hearing
- 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
- 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
- Have 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
- 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. (1)
The amendment lists specific rights that will be given to individuals (referred to as respondents and wards) from the time someone files a legal document saying they might be incompetent to the time they are found to be incompetent by a court proceeding and beyond.
Role of Guardians ad Litem (GALs)
Guardians ad Litem, or GALs, are people appointed by the court to represent and protect the best interests of those who might be incompetent. With this amendment, GALs have a new responsibility.
They now need to explain these nearly twenty rights to the individuals they represent, whether those individuals are just facing a claim of incompetency or have already been declared incompetent by the court.
Explanation of Rights
GALs must inform their clients about these rights in their first meeting and whenever the client asks about them later on.
Even if a GAL continues to represent an individual through different phases of the legal process (like from the incompetency stage to the guardianship proceedings stage), they need to explain these rights to their client at each phase.
GALS Provide Knowledge and Rights
This amendment essentially empowers individuals facing incompetency claims with more knowledge and rights during a challenging time. It ensures that the GALs representing them provide clear information about these rights at every step of the legal process.
Notably, GALs must now explain these rights to their clients, whether representing an allegedly incompetent respondent or a ward at different stages of incompetency and guardianship proceedings.
Implementation
The service of these notices is a crucial component of the change. Respondents must still be personally served with a copy of the petition and initial notice of hearing. However, the notice of rights form created by the Administrative Office of the Courts (AOC) in both English and Spanish will also be included starting in Jan.
Important Update on Notices
This update informs those with mental illness or physical disability about legal matters. Before, when someone was mentioned in a legal case about incompetency (inability to take care of themselves), they had to be given a copy of the legal papers and told about the first court hearing in person.
Now, there’s also going to be a special form telling about their rights if they suffer from an intellectual or developmental disability that might require a guardian.
The GALs will also be served with a copy of the notice of rights, the petition, and the initial notice of hearing according to relevant legal procedures.
Informing Family and Others After Filing a Case
Furthermore, the petitioner must send copies of the notice of rights, the petition, and the initial notice of hearing to the respondent’s next of kin and any other individuals designated by the clerk by first-class mail within five days of filing the petition.
This ensures that all service requirements, including the notice of rights, are met before commencing a hearing on an incompetency petition.
Practical Considerations for Guardian Ad Litems (GALs)
The new responsibilities for GALs raise questions about how best to inform and empower respondents, considering the language and the level of understanding. While these rights aren’t new, the legislation’s notice requirements emphasize them.
GALs must be diligent in explaining the respondent or ward’s rights very clearly and concisely under North Carolina law.
Additionally, GALs need to be prepared to discuss these rights at various stages of the proceedings and should revisit certain points, like the right to appeal, as needed. Moreover, this amendment offers an opportunity for GALs to reassess their discussions with respondents and ensure that critical issues, such as closed hearings, are adequately addressed in their work.
Moving Forward: Adapting to the New Legal Landscape
The upcoming changes to North Carolina’s adult guardianship laws mark a crucial step towards ensuring a more informed and fair process for individuals facing incompetency claims in guardianship proceedings.
The new Notice of Rights requirement in North Carolina amplifies the transparency and level of understanding for all parties involved, setting a precedent for a more informed legal relationship with others involved in incompetency and guardianship hearings.
Key Takeaways
As a guardian ad litem, this amendment underscores the importance of clear communication and a thorough explanation of rights to your clients. It’s a call to action for a guardian ad litem to be proactive and prepared to navigate through the new procedural landscape while ensuring that their clients are well-informed every step of the way.
These changes in North Carolina’s adult guardianship laws have a significant impact on how respondents and wards are informed about their rights and how GALs fulfill their responsibilities.
Legal professionals must adapt to these amendments to effectively advocate for their clients and ensure compliance with the new statutory requirements.
Stay informed about the legislative changes resulting from S.L. 2023-124 to better serve your clients in this evolving legal landscape.
For respondents and their families, the changes bring about a new layer of protection and awareness, providing them with a better understanding of their rights during a time that can be both confusing and stressful. For many in North Carolina, this is a welcome change.
Lastly, for the legal community at large, these changes echo a broader move toward creating a more transparent and understandable legal process.
It’s a reminder for legal practitioners to stay updated on the latest legislative changes that prove whether a person has sufficient capacity to handle his or her own affairs without an appointed guardian. And it’s a chance to continuously look for ways to better serve clients within the framework of the new North Carolina guardianship laws.
Stay Prepared
As we transition into this new phase of adult guardianship laws in North Carolina, preparation and adaptation will be essential. Ensuring that all legal practitioners are well-versed with the amendments and have resources to educate and inform their clients will be instrumental in making this transition smooth and effective.
By embracing these changes and preparing adequately, GALs and other legal practitioners will be better positioned to serve their client’s interests and navigate the new North Carolina legal landscape that awaits.
With the new North Carolina law set to take effect on January 1, 2024, there’s ample time for North Carolina legal practitioners to familiarize themselves with the new requirements and make necessary adjustments to their practice. Through continuous learning and adaptation, the legal community can work towards ensuring that the rights and interests of respondents are well-protected under the new guardianship proceedings framework.