A BILL TO BE ENTITLED
AN ACT to improve public guardianship services in north CAROLINA as recommended by the house study committee on state guardianship laws.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 32A‑10(b) reads as rewritten:
"(b)	A principal may nominate, by a durable power of attorney, the conservator, guardian of his estate, or guardian of his person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with G.S. 35A‑1214."
SECTION 2.  G.S. 32A‑22(b) reads as rewritten:
"(b)	A principal may nominate, by a health care power of attorney, the guardian of the person of the principal if a guardianship proceeding is thereafter commenced. The court shall make its appointment in accordance with G.S. 35A‑1214."
SECTION 3.  G.S. 35A‑1101(4) reads as rewritten:
"(4)	"Designated agency" means the State or local human services agency designated by the clerk in the clerk's order to prepare, cause to be prepared, or assemble a multidisciplinary evaluation and to perform other functions as the clerk may order. A designated agency includes, without limitation, State, local, regional, or area mental health, mental retardation, vocational rehabilitation, public health, social service, and developmental disabilities agencies, and diagnostic evaluation centers. An agency may not be designated as a designated agency in connection with any proceeding in which the agency or an official or employee of the agency is a party or has been appointed as an interim guardian, general guardian, or guardian of the person."
SECTION 4.  G.S. 35A‑1202(3) reads rewritten:
"(3)	"Designated agency" means the State or local human services agency designated by the clerk in an order to prepare, cause to be prepared, or assemble a multidisciplinary evaluation and to perform other functions as the clerk may order. A designated agency includes, without limitation, State, local, regional or area mental health, mental retardation, vocational rehabilitation, public health, social service, and developmental disabilities agencies, and diagnostic evaluation centers. An agency may not be designated as a designated agency in connection with any proceeding in which an official or employee of the agency has been appointed as a general guardian or guardian of the person."
SECTION 5.  G.S. 35A‑1202(4) reads as rewritten:
"(4)	"Disinterested public agent" means
	the director or an employee of a county social services department, a consolidated county human services agency, or a State, regional, county, or municipal aging agency.
	"
SECTION 6.  G.S. 35A‑1210 reads as rewritten:
"§ 35A‑1210.  Application before clerk.
Any person, including a corporation or State or local human services agency, may file an application for the appointment of a guardian for an incompetent person by filing the same with the clerk. The application may be joined with or filed subsequent to a petition for the adjudication of incompetence under Subchapter I of this Chapter. The application shall set forth, to the extent known and to the extent such information is not already a matter of record in the case:
(1)	The name, age, address, and county of residence of the ward or respondent;
(2)	The name, address, and county of residence of the applicant, his relationship if any to the respondent or ward, and his interest in the proceeding;
(3)	The name, address, and county of residence of the respondent's next of kin and other persons known to have an interest in the proceeding;
(4)	A general statement of the ward's or respondent's assets and liabilities with an estimate of the value of any property, including any income and receivables to which he is entitled; and
(5)	Whether the applicant seeks the appointment of a guardian of the person, a guardian of the estate, or a general guardian, and whom the applicant recommends or seeks to have appointed as such guardian or guardians."
SECTION 7.  G.S. 35A‑1213(a) reads as rewritten:
"(a)	The clerk may appoint as guardian an adult individual, a corporation, a public guardian, or a disinterested public agent. "
SECTION 8.  G.S. 35A‑1213(d) reads as rewritten:
"(d)	A disinterested public agent may not be appointed as guardian if the role of the agent or the agent's agency in relation to the ward is such that the agent's service as guardian constitutes a conflict of interest or is not be in the ward's best interest. A disinterested public agent who is appointed as guardian shall serve in that capacity by virtue of the agent's office or employment, which shall be identified in the clerk's order and in the letters of appointment. When the disinterested public agent's office or employment terminates, the agent's successor in office or employment, or the agent's immediate supervisor if there is no successor, shall succeed the agent as guardian without further proceedings unless the clerk orders otherwise. A disinterested public agent who is appointed as guardian may request the clerk to accept the agent's resignation pursuant to G.S. 35A‑1292 if the agent's continued service as guardian constitutes a conflict of interest."
SECTION 9.  G.S. 35A‑1213(e) reads as rewritten:
"(e)	Notwithstanding any other provision of this section, an owner, operator, or employee of a residential treatment facility or long‑term care institution, including a group home, adult care home, or nursing home, where the ward is receiving care may not be appointed as the ward's guardian unless related to the ward by blood, marriage, or adoption."
SECTION 10.  G.S. 35A‑1214 reads as rewritten:
"§ 35A‑1214.  Priorities for appointment.
(a)	When appointing a guardian, the clerk shall consider the recommendations of the applicant, the ward's next of kin, the ward, the guardian ad litem, and other interested persons, including State or local human services agencies.
(b)	The clerk shall appoint a guardian according to the following order of priority: (i) a qualified individual nominated as guardian by the respondent, including the respondent's most recent nomination made in a durable power of attorney, if at the time of the nomination the respondent had sufficient capacity to express a preference; (ii) a qualified individual who is an agent appointed by the respondent under a durable power of attorney or a durable health care power of attorney; (iii) a qualified individual recommended under G.S. 35A‑1212.1; (iv)a qualified individual who is the respondent's next of kin, who is related to the respondent, or with whom the respondent has lived for a period of at least six months within the year preceding the appointment; (v) a qualified individual who is not an individual specified in subparagraph (iv) and is not a public guardian or a disinterested public agent; (vi) a qualified corporation; (vii) a public guardian; or (viii) a disinterested public agent. 
(c)	A public guardian or disinterested public agent may not be appointed as guardian unless the clerk determines that no other individual or corporation is qualified, suitable, and willing to serve as guardian. A disinterested public agent who is appointed as guardian may request the clerk to accept the agent's resignation pursuant to G.S. 35A‑1292 if another individual or corporation is qualified, suitable, and willing to serve as guardian.
(d)	With respect to persons having equal priority, the clerk shall appoint the person who is best qualified and suited to serve as guardian.
(e)	Notwithstanding subsection (b) of this section, the clerk may decline to appoint a qualified person having priority and appoint a qualified person having a lower priority when the clerk determines that appointing a qualified person having a lower priority is in the ward's best interest."
SECTION 11.  G.S. 35A‑1216 reads as rewritten:
"§ 35A‑1216.  Rule‑making power of Secretary of Health and Human Services.
The Secretary of the Department of Health and Human Services shall adopt rules concerning the guardianship responsibilities of disinterested public agents and public guardians. The rules shall provide, among other things, that disinterested public agents and public guardians shall undertake or have received training concerning the powers and responsibilities of guardians."
SECTION 12.  G.S. 35A‑1224(e) reads as rewritten:
"(e)	Notwithstanding any other provision of this section, an owner, operator, or employee of a residential treatment facility or long‑term care institution, including a group home, adult care home, or nursing home, where the ward is receiving care may not be appointed as the ward's guardian unless related to the ward by blood, marriage, or adoption."
SECTION 13.  G.S. 35A‑1230 reads as rewritten:
"§ 35A‑1230.  Bond required.
(a)	Except as otherwise provided by G.S. 35A‑1212.1 and G.S. 35A‑1225(a), no public guardian, general guardian or guardian of the estate shall be permitted to receive the ward's property until the guardian has given sufficient surety, approved by the clerk, to account for and apply the same under the direction of the court.If the guardian is a nonresident of this State and the value of the property received exceeds one thousand dollars ($1,000) the surety shall be a bond under G.S. 35A‑1231(a) executed by a duly authorized surety company, or secured by cash in an amount equal to the amount of the bond or by a mortgage executed under Chapter 109 of the General Statutes on real estate located in the county, the value of which, excluding all prior liens and encumbrances, shall be at least one and one‑fourth times the amount of the bond.A nonresident guardian shall appoint a resident agent to accept service of process in all actions and proceedings with respect to the guardianship. 
(b)	Before issuing letters of appointment or at any time thereafter, the clerk may require a public guardian, disinterested public agent, or nonresident who is a guardian of the person to post and maintain a bond or other security, in an amount the clerk deems reasonable and necessary, for the faithful performance of the guardian's powers and duties.
(c)	Notwithstanding any other provision of this Article, the clerk shall accept a blanket bond purchased by the Department of Health and Human Services for a public guardian or disinterested public agent in lieu of a bond required under subsection (a) or (b) of this section or under G.S. 35A‑1231, unless the clerk determines that the amount of the bond is insufficient to protect the ward or the ward's estate."
SECTION 14.  G.S. 35A‑1239 reads as rewritten:
"§ 35A‑1239.  Health and Human Services bond.
The Secretary of the Department of Health and Human Services shall require or purchase individual or blanket bonds for all public guardians and all disinterested public agents appointed to be guardians, whether they serve as guardians of the estate, guardians of the person, or general guardians, or one blanket bond covering all public guardians and disinterested public agents, the bond or bonds to be conditioned upon faithful performance of their duties as guardians and made payable to the State. The premiums shall be paid by the State."
SECTION 15.  G.S. 35A‑1242(a) reads as rewritten:
"(a)	Any corporation, public guardian, or disinterested public agent that is guardian of the person for an incompetent person, within six months after being appointed, shall file an initial status report with the clerk, and, if ordered by the clerk, with a designated agency. The guardian shall file a second status report with the clerk, and, if required, the designated agency, one year after being appointed, and subsequent reports annually thereafter. The clerk may order any other guardian of the person to file status reports. "
SECTION 16.  G.S. 35A‑1271, G.S. 108A‑15, and G.S. 122C‑122 are repealed.
SECTION 17.(a)  The University of North Carolina Institute on Aging shall conduct a study regarding public guardianship services. In conducting the study, the Institute on Aging shall consult with agencies and organizations that are involved or interested in the provision of public guardianship services, including the Division of Aging and Adult Services, the ARC of North Carolina, the Corporation for Guardianship Services, the North Carolina Guardianship Association, the North Carolina Association of County Directors of Social Services, Carolina Legal Assistance, and the Elder Law Section of the North Carolina Bar Association. The Institute on Aging shall consider the recommendations regarding public guardianship services made by the Wingspread National Guardianship Conference, the Wingspan National Guardianship Conference, and the National Study of Public Guardianship conducted by the American Bar Association's Commission on Legal Problems of the Elderly, as well as the structure, administration, funding, and performance of the public guardianship programs in Florida, Georgia, Illinois, Indiana, Kentucky, and Virginia.
SECTION 17.(b)  The study shall address the following:
(1)	The provision of public guardianship services through "disinterested public agent" guardians appointed under Chapter 35A of the General Statutes.
(2)	The provisions of public guardianship services through "public guardians" under Article 11 of Chapter 35A of the General Statutes.
(3)	The advantages and disadvantages of providing public guardianship services through each of the four models of public guardianship (court, social services, independent agency, and county) identified in the National Study of Public Guardianship.
(4)	The cost and feasibility of providing public guardianship services through government‑funded nonprofit corporations.
(5)	The potential for conflicts of interest in the provision of public guardianship services and ways to avoid or minimize potential conflicts of interest in providing public guardianship services.
(6)	The amount of funding needed to provide high quality public guardianship services.
(7)	Potential sources of revenue to fund public guardianship services.
(8)	Eligibility to receive public guardianship services.
(9)	Monitoring and evaluation of public guardianship programs.
(10)	Maximum staff‑ward ratios for public guardianship programs.
(11)	Training of public guardians.
(12)	Certification of public guardianship programs.
(13)	Ethical and practice standards for public guardianship programs.
SECTION 17.(c)  The Institute on Aging shall submit a report of its findings and recommendations to the North Carolina Study Commission on Aging, Department of Health and Human Services, the Division of Aging and Adult Services, and the Fiscal Research Division on or before October 1, 2009.
SECTION 17.(d)  There is appropriated from the General Fund to the Board of Governors of The University of North Carolina the sum of thirty thousand dollars ($30,000) for the 2007‑2008 fiscal year to conduct the study required by Section 17 of this act.
SECTION 18.  Sections 1 through 16 of this act shall not affect the validity of any appointment of a guardian that occurred before January 1, 2008.
SECTION 19.  There is appropriated from the General Fund to the Department of Health and Human Services, Division of Aging and Adult Services, the sum of thirty thousand dollars ($30,000) for the 2007‑2008 fiscal year to be used to develop educational and training resources for nonprofit corporations and individuals who are appointed as general guardians, guardians of the person, or guardians of the estate.
SECTION 20.  There is appropriated from the General Fund to the Department of Health and Human Services, Division of Aging and Adult Services, the sum of five hundred thousand dollars ($500,000) for the 2007‑2008 fiscal year and the sum of five hundred thousand dollars ($500,000) for the 2008‑2009 fiscal year to be allocated to public guardians and disinterested public agents for public guardianship services.
SECTION 21.  Section 17(a) through (c) is effective when it becomes law. Sections 17(d), 19, and 20 of this act become effective July 1, 2007.  Sections 1 through 16 of this act become effective January 1, 2008, and apply to incompetency and guardianship proceedings pending or filed on or after that date.