Legal Issues in Incompetency and Adult Guardianship Proceedings in light of COVID‐19 Hon. Michelle Ball, Johnston County Clerk of Superior Court Timothy Heinle, UNC School of Government Meredith Smith, UNC School of Government April 15, 2020 1 Session Agenda 1. Quick Overview of Supreme Court Orders 2. Chief Justice’s April 2, 2020 Order • Emergency Proceedings • Remote Proceedings 3. Other Special Issues in Incompetency and Guardianship Proceedings • Service on the respondent • Personal visits by GAL with the respondent • Respondent’s attendance at the hearing 2 Part I 3 1
April 2, 2020 Order 4 Incompetency and Guardianship April 2 Order, Directive 5: Examples of forms under oath or verified 1. Petition for Adjudication – AOC SP 200 2. Motion for Interim – AOC SP 198 3. Inventory for Guardianship – AOC E 510 4. Account – AOC E 506 5. Status Report – DHHS form *** DOES NOT APPLY TO WILLS (but would apply to affidavits in support i.e. AOC‐E‐300, AOC‐E‐301, and AOC‐E‐302.*** 5 NEW ‐ April 13, 2020 Order 6 2
Part II: April 2, 2020 Order 7 April 2, 2020 Order: Directive #1 • “Proceedings” includes incompetency and adult guardianship proceedings under G.S. Chapter 35A • Does not impact ability to initiate/file a proceeding (i.e. AOC SP‐200) • Does not impact ability to file documents in those matters i.e. status reports, inventories, accountings • However, additional time to file documents due on or after March 16th; given to close of business on June 1 under April 13 order 8 Exceptions to Directive #1 Directs proceedings must be scheduled/rescheduled for no sooner than June 1 unless one of four exceptions applies. Exceptions include: 1. The proceeding is for the purpose of obtaining emergency relief , or 2. The proceeding will be conducted remotely. 9 3
Exceptions to Directive #1 Proceedings must be scheduled/rescheduled for no sooner than June 1 unless an exception applies. Exceptions include: 1. The proceeding is for the purpose of obtaining emergency relief , or 2. The proceeding will be conducted remotely. 10 Emergency Relief + 35A Proceedings Proceedings under G.S. Chapter 35A for emergency relief include: 1. Interim Guardianship (G.S. 35A‐1114) 2. (Emergency) Motions in the Cause (G.S. 35A‐1207) 3. Emergency Removal (G.S. 35A‐1291) ‐ Per Directive #1, may be conducted prior to June 1 st . 11 • Move hearings to larger courtroom, as available • Set up social distancing guidance in the courtroom 12 4
Emergency Relief + 35A Proceedings Proceedings After Available Adjudication/ Appointment Pre‐Adjudication of a Guardian • Interim Guardianship • Motion in the Cause • Removal 13 Interim Guardian A guardian, appointed prior to adjudication of incompetence and for a temporary period , for a person who requires immediate intervention to address conditions that constitute imminent or foreseeable risk of harm to the person's physical well‐being or to the person's estate. G.S. 35A‐1101(11) 14 Interim Guardianship Who may seek appointment of Interim Guardian: • Petitioner or GAL by verified motion filed at or subsequent to filing petition • Clerk on clerk’s own motion at the incompetency hearing G.S. 35A‐1114(a); G.S. 35A‐1112(b1) 15 5
Interim Guardianship Grounds 1. Reasonable cause to believe respondent incompetent and 2. Is or reasonably appears to be an imminent or foreseeable risk of harm to the (a) respondent or (b) respondent’s estate that requires immediate intervention prior to the adjudication hearing G.S. 35A‐1114(a); G.S. 35A‐1112(b1) 16 Interim Guardianship Order must be narrowly tailored to meet the emergency • Interim guardian’s powers are limited and extend only so far as necessary to meet the conditions necessitating the appointment • Powers are set out in clerk’s order appointing interim (AOC‐SP‐900) 17 Interim Guardianship Appointed for a temporary period • Terminates at the earliest of • Date in the clerk’s order • 45 days from appointment, unless extended for good cause for another 45 days* • When a guardian appointed, or • Petition for adjudication dismissed * 90 days from today – July 14 th 18 6
(Emergency) Motion in the Cause Any interested person may file a motion in the cause with the clerk….to request modification of the order appointing a guardian or guardians or consideration of any matter pertaining to the guardianship . • The clerk must treat all requests, however labeled, as motions in the cause. • If an emergency exists regarding physical well‐being of the ward or ward’s estate, clerk may enter appropriate ex parte order to address the emergency pending disposition of the matter at the hearing GS 35A‐1207 19 Emergency Removal The clerk may • Remove a guardian without hearing if the clerk finds reasonable cause to believe that an emergency exists that threatens the physical well‐ being of the ward or constitutes a risk of substantial injury to the ward's estate. • When letters are revoked, enter interlocutory orders the clerk finds necessary for the protection of the ward or the ward’s estate pending resolution of the controversy related to removal G.S. 35A‐1291 20 Exceptions to Directive #1 Proceedings must be scheduled/rescheduled for no sooner than June 1 unless one of four exceptions applies. Includes: 1. The proceeding is for the purpose of obtaining emergency relief , or 2. The proceeding will be conducted remotely. 21 7
April 2, 2020 Order: Directive #3 22 April 2, 2020 Order: Directive #3 • Authorization to conduct remote proceedings does not extend to proceedings that involve a jury i.e. incompetency or restoration proceeding involving a jury trial. • Does not prevent officials from conducting in person proceedings that are otherwise allowed under Directive #1 of the April 2, 2020 order (i.e. emergency proceedings) 23 April 2, 2020 Order: Directive #3 Judicial officials who conduct a remote proceeding pursuant to this directive must • safeguard the constitutional rights of those persons involved in the proceeding and • preserve the integrity of the judicial process. This specifically means….. 24 8
April 2, 2020 Order, Directive #3 1. If the proceeding is required by law to be recorded, then the remote proceeding must be recorded. 2. Each party to a remote proceeding must be able to communicate fully and confidentially with his or her attorney if the party is represented by an attorney. 3. A remote proceeding may not be conducted without the consent of each party. 25 Recording the Proceeding Incompetency – appealed de novo pursuant to G.S. 1‐301.2 – does not specifically address recording Guardianship – appealed on the record pursuant to G.S. 1‐301.3; recorded addressed in subsection (f) • All hearings and other matters shall be recorded by an electronic recording device • In the discretion of the clerk, or • Upon the request by a party. • If recordation is not made, the clerk shall submit a summary of the evidence presented to the clerk to the superior court. 26 April 2, 2020 Order, Directive #3 1. If the proceeding is required by law to be recorded, then the remote proceeding must be recorded. 2. Each party to a remote proceeding must be able to communicate fully and confidentially with his or her attorney if the party is represented by an attorney. 3. A remote proceeding may not be conducted without the consent of each party. 27 9
April 2, 2020 Order, Directive #3 1. If the proceeding is required by law to be recorded, then the remote proceeding must be recorded. 2. Each party to a remote proceeding must be able to communicate fully and confidentially with his or her attorney if the party is represented by an attorney. 3. A remote proceeding may not be conducted without the consent of each party. 28 Remote Proceedings + Chapter 35A Two big issues 1. Who must consent – who is a party? 2. May the GAL give consent on the respondent’s behalf? 29 Issue #1: Who Must Consent? Directive states: “each party” Then raises the question of who is a party? ‐ Incompetency proceeding ‐ Guardianship proceeding ‐ Proceedings filed after adjudication and the appointment of a guardian related to the guardianship 30 10
Who is a Party Full incompetency and guardianship proceeding: 1. Petitioner 2. Respondent and Respondent’s counsel or GAL 3. Any applicant for guardianship Refer to Blog Post: On the Civil Side , “You Have a Right to Appeal My Incompetency,” March 30, 2016 31 Who is a Party Full incompetency and guardianship proceeding: Likely also includes others entitled to notice under G.S. 35A‐1109 1. Next of kin alleged in the petition (SP‐200) 2. Other persons designated to receive notice by the clerk A person entitled to notice of the incompetency proceeding also has standing to appeal the incompetency order as an interested party. See In re Ward, 337 N.C. 443 (1994); In re Winstead, 189 N.C. App. 145 (2008). 32 Motion on Interim Guardianship Motion must be served on 1. Petitioner 2. Respondent and Respondent’s Counsel or GAL 3. Other persons the clerk may designate *Does not specifically reference next of kin. G.S. 35A‐1114(c1) 33 11
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