GUARDIANSHIP RIGHTS/MODIFY FIREARMS RETRIEVAL. (NEW)

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View NCGA Bill Details2023-2024 Session
Senate Bill 308 (Public) Filed Tuesday, March 14, 2023
AN ACT TO UPDATE THE GUARDIANSHIP ACCOUNTING STATUTE TO ALLOW FOR CERTAIN TIMING ELECTIONS AND EXTENSIONS, TO AMEND THE GENERAL STATUTES TO PREVENT THE ABUSE OR MISUSE OF AUTHORITY GRANTED TO AN AGENT IN A POWER OF ATTORNEY, AND TO PROMOTE THE RIGHTS AND INDEPENDENCE OF PERSONS SUBJECT TO THE GUARDIANSHIP PROCESS AND TO IMPROVE JUDICIAL OVERSIGHT AND ACCOUNTABILITY FOR GUARDIANS OF THE PERSON, AS RECOMMENDED BY THE NORTH CAROLINA BAR ASSOCIATION, TO MODIFY AND CLARIFY PROVISIONS RELATED TO THE RETRIEVAL OF FIREARMS, AMMUNITION, AND PERMITS SURRENDERED PURSUANT TO AN EX PARTE, EMERGENCY, OR PERMANENT DOMESTIC VIOLENCE PROTECTIVE ORDER, AND TO PROTECT MINOR VICTIMS OF AND WITNESSES TO CRIME.
Intro. by Galey, Daniel, Overcash.

Status: Ref To Com On Rules and Operations of the Senate (Senate action) (Aug 21 2023)

SOG comments (1):

Long title change

House committee substitute to the 2nd edition changed the long title. Original title was AN ACT TO UPDATE THE GUARDIANSHIP ACCOUNTING STATUTE TO ALLOW FOR CERTAIN TIMING ELECTIONS AND EXTENSIONS, TO AMEND THE GENERAL STATUTES TO PREVENT THE ABUSE OR MISUSE OF AUTHORITY GRANTED TO AN AGENT IN A POWER OF ATTORNEY, AND TO PROMOTE THE RIGHTS AND INDEPENDENCE OF PERSONS SUBJECT TO THE GUARDIANSHIP PROCESS AND TO IMPROVE JUDICIAL OVERSIGHT AND ACCOUNTABILITY FOR GUARDIANS OF THE PERSON, AS RECOMMENDED BY THE NORTH CAROLINA BAR ASSOCIATION.

Bill History:

S 308

Bill Summaries:

  • Summary date: Aug 16 2023 - View Summary

    House amendment to the 3rd edition makes the following changes.

    Part IV

    Amends GS 50B-3.1 (Surrender and disposal of firearms; violations; exceptions) to remove ammunition from the list of items that the court must inquire about ownership or access to when holding the 10-day hearing required by subsection (c) following issuance of an ex parte or emergency GS Chapter 50B protective order. Removes ammunition from the list of items that must be immediately surrendered to a sheriff upon service of an ex parte or emergency order under subsection (d). Amends subsections (i) and (j) to remove permits to purchase firearms from the list of items it is unlawful for a person subject to a protective order to possess. Amends the provisions concerning disposal of firearms, ammunition, or permits as follows. Allows the sheriff who has control of the firearms, ammunition, or permits, after notice to the defendant and any known third-party owner, to apply for a court order for disposition of the firearms, ammunition, or permits under the following circumstances: (1) both of the following criteria are met: a. if the defendant or third-party owner has not filed a motion requesting the return of any firearms, ammunition, or permits surrendered within 90 days after the expiration of the current order or final disposition of any pending criminal charges committed against the person that is the subject of the current protective order, and b. the defendant has not retrieved the firearms within 90 days after the expiration of the current order or final disposition of any pending criminal charges committed against the person that is the subject of the current protective order; (2) the court has determined that the defendant or third-party owner is precluded from regaining possession of any firearms, ammunition, or permits surrendered; or (3) the defendant or third-party owner fails to remit all fees owed for the storage of the firearms or ammunition within 30 days of either (i) the entry of the order granting the return of the firearms, ammunition, or permits, or (ii) a request to retrieve the firearms, ammunition, or permits. Makes conforming changes. Reinstates the provision making it illegal for any person subject to a protective order prohibiting the possession or purchase of firearms to fail to surrender, or fail to disclose all information pertaining to, permits to purchase firearms. Reinstates the provision making it illegal for any person to possess, purchase, or receive or attempt to possess, purchase, permits to purchase concealed firearms if ordered by the court for so long as that protective order or any successive protective order entered against that person.

    Changes the effective date of Part IV so that it is now effective December 1, 2023, and applies (1) to firearms, ammunition, and permits surrendered on or after that date and (2) beginning February 1, 2024, to firearms, ammunition, and permits surrendered before December 1, 2023.


  • Summary date: Aug 16 2023 - View Summary

    House committee substitute to the 2nd edition adds the following new content.

    Part IV

    Amends GS 50B-3.1 (Surrender and disposal of firearms; violations; exceptions) to remove permits to purchase firearms from the list of items that the court must inquire about ownership or access to when holding the 10-day hearing required by subsection (c) following issuance of an ex parte or emergency GS Chapter 50B protective order. Removes permits to purchase firearms from the list of items that must be immediately surrendered to a sheriff upon service of an ex parte or emergency order under subsection (d). Amends subsections (i) and (j) to remove permits to purchase firearms from the list of items it is unlawful for a person subject to a protective order to possess. Amends subsection (e) to allow a defendant to obtain any weapons surrendered under the section without a further court order if (1) the court doesn’t enter a protective order when the ex parte or emergency order expires, or (2) the protective order is denied by the court after a hearing. Requires the sheriff to run a background check on the defendant to ensure that they are not prohibited from possessing firearms before releasing the surrendered firearms. Amends subsection (g) to allow third parties who own items surrendered to a sheriff under a protective order to file a motion for their return at any time prior to their disposal under subsection (h) (was, motion must be filed within 30 days after seizure). Amends subsection (h) to include references to third-party owners and provide a time period for filing a motion to request return before disposal. Now allows rather than requires the sheriff to apply to the court for an order of disposition upon the defendant or third party failing to request the return of surrendered items, being precluded from the return, or failing to pay storage fees for the surrendered items. Effective when the act becomes law and applies to firearms, ammunition, and permits surrendered on or after that date, and, beginning 60 days after the act becomes law, applies to firearms, ammunition, and permits surrendered before the date the act becomes law.

    Part V

    Amends GS 132-1.4(c)(4) to remove from the designation of public records the contents of a 911 or other emergency call where the caller is less than 18 years of age. Makes clarifying changes. 

    Amends the act's titles.


  • Bill S 308
    Summary date: Apr 4 2023 - View Summary

    Senate committee substitute to the 1st edition makes the following changes. 

    Part 1

    Amends GS 35A-1264 (pertaining to annual accounts by guardians of property the guardian received) to specify that election of a fiscal year must be made by the guardian upon filing of the first annual account; or, if made in a subsequent year, with the permission of the clerk (was, just provided for election of a fiscal year). Changes the part’s effective date to January 1, 2024 (was, effective when it became law).

    Part 3

    Makes clarifying change to GS 35A-1116 (pertaining to assessment of costs and fees) to clarify that a court can only tax costs incurred by any party against the respondent if the court finds that such costs were incurred for the respondent’s benefit. (Prior version did not have language specifying that the court must make that finding.) Specifies that if the clerk finds that the petitioner did not have reasonable grounds to bring the proceeding, costs will be taxed to the petitioner.

    Amends the notice of right to an attorney specified in GS 35A-1117 (required notice of rights to respondent) to also notify the respondent that if they do hire an attorney, the court may require the guardian ad litem to continue to be involved in their case.  Makes technical and clarifying changes to the right-to-hearing language set forth in GS 35A-1117. Deletes requirement that the court provide a copy of the notice of rights to the respondent, respondent’s next of kin, and upon request, any interested party.  

    Changes part’s effective date to January 1, 2024, and now applies to petitions filed on or after that date (was, effective when it became law and applies to petitions filed 180 days thereafter).  


  • Summary date: Mar 14 2023 - View Summary

    Part I

    Amends GS 35A-1264 (pertaining to annual accounts by guardians of property the guardian received) to require guardian to submit annual reports at the end of a fiscal year term selected by the guardian upon the filing of the initial annual account. Specifies that the fiscal year term must be at least 11 months but no more than 12 months from the date of the guardian’s qualification or appointment. (Currently, requires annual filing within 30 days after the expiration of one year from the date of the guardian's qualification or appointment.) Allows the time for filing the annual account to be extended by the clerk. Makes accounts due within 30 days after the close of the fiscal year selected and annually thereafter. Requires the clerk to carefully review and audit the annual account and if approved, endorse the account and cause it to be recorded. Makes language gender neutral. Makes technical changes.

    Part II

    Amends GS 32C-1-116 (pertaining to jurisdiction of Superior Court over causes of action related to guardianship), to clarify that the court must dismiss a case filed under its enumerated jurisdiction if a motion is submitted by a principal who the court determines is not incapacitated individually and not through an agent. (Currently, law only refers to a motion by the principal.)

    Part III

    Amends the definitions of incompetent child and incompetent adult in GS 35A-1101 (definitions applicable to incompetence proceedings) to clarify that neither party lacks capacity if, by means of a less restrictive alternative, he or she is able to sufficiently (1) manage his or her affairs and (2) communicate important decisions concerning his or her person, family, and property. Adds definition of less restrictive alternative (an arrangement enabling a respondent to manage his or her affairs or to make or communicate important decisions concerning his or her person, property, and family that restricts fewer rights of the respondent than would the adjudication of incompetency and appointment of a guardian. The term includes supported decision making, appropriate and available technological assistance, appointment of a representative payee, and appointment of an agent by the respondent, including appointment under a power of attorney for health care or power of attorney for finances).

    Amends GS 35A-1106 (contents of a petition to determine competency) to require the petition to include a statement identifying what less restrictive alternatives have been considered prior to seeking adjudication and why they are insufficient to meet the needs of the respondent. Makes technical changes and terms gender neutral.

    Enacts new GS 35A-1117, pertaining to notice of rights of the respondent in proceedings under GS Chapter 35A (Incompetency and Guardianship), requiring that every respondent, and upon request, the respondent’s next of kin, and any interested party, be given a notice of rights as follows. Requires the following language that must be conspicuously set forth to the respondent in a substantially similar way, “The laws governing incompetency and guardianship are complex. This is a summary of rights for informational purposes only. It is not intended to be a complete discussion of all rights.  The rights listed may not apply in all cases and should not be cited as law in a court proceeding. You should consult with an attorney of your choosing if you have any questions about your rights.” Lists the following 11 rights of respondents before adjudication of incompetence, which should be provided as part of the notice:

    · Right to notice of a copy of the petition, the initial notice of hearing, and this notice of rights before the hearing -- Specifies the respondent may request a copy of this notice of rights from their court-appointed guardian ad litem. 

    · Right to an Attorney – Specifies if the respondent does not hire their own attorney, they will be represented by an attorney called a guardian ad litem to present the respondent’s express wishes to the court and consider the possibility of a limited guardianship, making recommendations to the court regarding the rights that the respondent should keep if the guardianship is limited. The guardian ad litem may also make recommendations to the court that the guardian ad litem feels are in the respondent’s best interest, even if those recommendations differ from their express wishes.

    · Right to Gather Evidence – Respondent has the right to require witnesses to appear and to gather documents concerning the respondent’s ability to make decisions and the right to request an evaluation (called a multidisciplinary evaluation) to assist the court in determining the extent of the respondent’s ability to make decisions and to assist in making an appropriate guardianship plan. Specifies that the respondent or their attorney must request a multidisciplinary evaluation in writing no later than 10 days after the respondent is served with the petition.

    · Right to a Hearing – Specifies that a hearing must be held before the respondent can be adjudicated to be incompetent. The hearing will be held between 10 and 30 days after the respondent receives a copy of the petition, notice of hearing, and this notice of rights unless the court delays the hearing for a good reason. The respondent has the right to request the date of the hearing be changed for a good reason. The respondent has a right to attend the hearing if they choose to do so. The respondent can give up their right to attend the hearing. The respondent has a right to have their express wishes communicated to the court by the court-appointed guardian ad litem at all relevant stages of the proceedings.

    · Right to a Jury – Specifies that the respondent has the right to request that a jury hear their case. The respondent loses that right to a jury if the respondent waits too long to ask.

    · Right to a Closed Hearing – Warns that the hearing is open to the public unless the respondent or their attorney asks for it to be private. The respondent or their attorney has the right to ask the court to close the hearing and exclude anyone who is not directly involved or testifying at the hearing.

    · Right to Present Evidence and Testimony – Specifies that the respondent has a right to present evidence at the hearing and to testify at the hearing.

    · Right to Call Witnesses and Right to Question Witnesses – The respondent has the right to call and question witnesses at the hearing, including family members and medical providers. The respondent has the right to question witnesses anyone else calls at the hearing.

    · Right to Express Wishes Regarding Your Rights – If the respondent is adjudicated to be incompetent, the respondent will lose the right to direct their healthcare, employment, interpersonal relationships, and religious, social, and community activities unless the court specifically agrees to allow the respondent to keep those rights. The respondent has the right to tell the court what rights they would like to keep. Specifies that the court will consider the respondent’s wishes, but the court is not required to follow them.

    · Right to Express Wishes as to Who Serves as Your Guardian – If the court decides that the respondent needs a guardian, the respondent has the right to tell the court who they want to be their guardian. Specifies that the court will consider the respondent’s wishes, but the court is not required to follow them.

    · Right to Appeal – If  the respondent has a good reason to believe that their case was wrongly decided, (1) they have the right to appeal the decision adjudicating them to be incompetent by filing a written notice of appeal with the clerk within 10 days of the clerk entering the order and (2) they have the right to appeal the clerk's decision about who is appointed as their guardian by filing a written notice of appeal with the clerk within 10 days of the order being served on them. The respondent loses their rights to appeal any decision made by the clerk if they do not file a written notice of appeal in time.

    Further lists 8 additional rights of a ward after adjudication of incompetence, which should be provided as part of the notice:

    · Right to a qualified, responsible guardian.

    · Right to request transfer to another county.

    · Right to request modification of review of guardianship.

    · Right to vote.

    · Right to request a hearing in petition for procedure to permit sterilization. (Specifies that if a guardian asks for the court to order that a ward be sterilized, the ward has the right to know about it, to participate in the hearing, to have an attorney at the hearing, and to appeal the court’s decision by filing a written notice of appeal with the clerk within 10 days of the clerk entering the order.)

    · Ability to drive -- specifies that the clerk must inform the Department of Motor Vehicles (DMV) that the ward has been determined to be incompetent. Warns that the ward may lose their ability to drive a vehicle. Specifies that the ward has the right to make a written request to the DMV to review a decision to revoke their license. 

    · Advises the ward to consult with an attorney about additional rights that may depend on capacity, like the right to marry, make a last will and testament, and to testify as a witness.

    Requires the Administrative Office of the Court (AOC) to develop a form notice and to make a Spanish translation available.

    Makes conforming changes to GS 35A-1107 (pertaining to right to counsel or guardian ad litem), GS 35A-1108 (issuance of notice), GS 35A-1109 (service of notice and petition), and GS 35A-1217 (appointment of guardian ad litem for incompetent ward) to refer to the notice specified above.  Amends GS 35A-1108 to require the hearing on the petition be held no less than 10 days nor more than 30 days after service of the notice of rights and the petition and initial notice of hearing (was, service of notice of petition only). Amends GS 35A-1109to require the initial notice of hearing be mailed to the respondent's next of kin and other designated persons.

    Amends GS 35A-1116 (pertaining to costs and fees) to allow for costs to be apportioned among the parties in the alternative to taxed against any party. Removes language in the statute authorizing petitioner’s counsel fees to be taxed against a party as costs.  Directs the court to tax costs incurred by any party against the respondent if those costs were incurred for the benefit of the respondent, unless doing so would be inequitable.  Specifies that if the respondent is indigent, then the costs are waived if not taxed against a party other than respondent. (Currently, refers to costs being assessed against the petitioner.) Deletes provisions authorizing costs to be taxed to the petitioner if clerk finds that the petitioner did not have reasonable grounds to bring the proceeding.  Makes technical changes. 

    Amends GS 35A-1201 (purpose of guardian and ward statutes) to specify that (1) for adults, guardianship should always be a last resort and should only be imposed after less restrictive alternatives have been considered and found to be insufficient to meet the adult’s needs and (2) filing regular status reports by the guardian on the person's conditions and welfare are encouraged and should be required where appropriate. Amends GS 35A-1207 (motions in the cause) to allow the clerk, on their own motion, to file a motion for modification of the order appointing (a) guardian(s) or consideration of any matter pertaining to the guardianship. (Currently, only any interested person may file such motions.) Amends GS 35A-1214 to give first priority of appointment to an individual or entity nominated under GS 32C-1-108(a) (guardian nominated in a duly executed power of attorney) or GS 32A-22(b) (guardian nominated in a duly executed health care power of attorney). Makes technical changes. 

    Amends GS 35A-1242 (status reports for incompetent wards) to require a person’s guardian(s), upon knowledge of the ward’s change of residence, to file a notice of change of the ward’s address with the court within 30 days. Specifies content for notice. 

    Applies to petitions filed 180 days after the act becomes law.