Bill Summary for S 308 (2023-2024)
|View NCGA Bill Details||2023-2024 Session|
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.Intro. by Galey, Daniel, Overcash.
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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.
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.)
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.