A BILL TO BE ENTITLED
AN ACT to redefine the role of court‑appointed attorneys in incompetency and guardianship proceedings under the laws pertaining to guardianship as recommended by the house study committee on state guardianship laws.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 35A‑1101(4) reads as rewritten:
"When used in this Subchapter:
…
(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, to serve as a guardian ad litem, or 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 2.  G.S. 35A‑1107 is repealed.
SECTION 3.  Article 1 of Chapter 35A of the General Statutes is amended by adding a new section to read:
"§ 35A‑1107.1.  Right to counsel.
(a)	Upon filing a petition for adjudication of incompetence, an attorney shall be appointed to represent the respondent in accordance with rules adopted by the Office of Indigent Defense Services. However, the respondent is entitled to be represented by counsel retained by the respondent. If the respondent retains counsel, the attorney appointed to represent the respondent shall be discharged from further responsibility in the proceeding. A respondent who has not retained counsel may not discharge the attorney appointed to represent him or her or waive his or her right to counsel unless the clerk, after examining the respondent or hearing evidence, makes a finding that the respondent has sufficient capacity to make an informed decision regarding waiver of legal representation.
(b)	Unless discharged pursuant to subsection (a) of this section, an attorney appointed under this section shall represent the respondent until the petition is dismissed or until a guardian is appointed under Subchapter II of this Chapter.
(c)	An appointed or retained attorney who represents a respondent in a proceeding under this Subchapter or under Article 5 of this Chapter shall comply with the Revised Rules of Professional Conduct adopted by the North Carolina State Bar, including the rules that address representing clients with diminished capacity.
(d)	An attorney appointed to represent a respondent under this section shall personally visit the respondent as soon as possible following the attorney's appointment, and, to the extent that the respondent is able to understand, shall:
(1)	Explain to the respondent the substance of the petition, the nature, purpose, and effect of the proceeding, the respondent's rights at the hearing, and the general powers and duties of a guardian;
(2)	Determine the respondent's views about the proposed guardian, the proposed guardian's powers and duties, and the scope and duration of the proposed guardianship; and
(3)	Inform the respondent of the right to employ and consult with a lawyer at the respondent's own expense.
An attorney appointed to represent a respondent under this section shall make a reasonable investigation of the respondent's physical and mental condition, the respondent's mental and physical capacity, the respondent's needs, the appropriateness of guardianship, and the appropriateness of any proposed guardian.
(e)	Notwithstanding the provisions of G.S. 1A‑1, Rule 17, a guardian ad litem shall not be appointed for a respondent in a proceeding under this Subchapter or Article 5 of this Chapter unless requested by the respondent's counsel."
SECTION 4.  G.S. 35A‑1109 reads as rewritten:
"§ 35A‑1109.  Service of notice and petition.
Copies of the petition and initial notice of hearing shall be personally served on the respondent. A sheriff who serves the notice and petition shall do so without demanding his fees in advance. The petitioner, within five days after filing the petition, shall mail or cause to be mailed, by first‑class mail, copies of the notice and petition to the respondent's next of kin alleged in the petition and any other persons the clerk may designate, unless such person has accepted notice. Proof of such mailing or acceptance shall be by affidavit or certificate of acceptance of notice filed with the clerk. The clerk shall mail, by first‑class mail, copies of subsequent notices to the next of kin alleged in the petition and to such other persons as the clerk deems appropriate."
SECTION 5.  G.S. 35A‑1110 reads as rewritten:
"§ 35A‑1110.  Right to jury.
The respondent has a right, upon request by the respondent, the respondent's counsel, or the respondent's guardian ad litem, to trial by jury. Failure to request a trial by jury shall constitute a waiver of the right. The clerk may nevertheless require trial by jury in accordance with G.S. 1A‑1, Rule 39(b), Rules of Civil Procedure, by entering an order for trial by jury on his own motion. The jury shall be composed of 12 persons chosen from the county's jury list in accordance with the provisions of Chapter 9 of the General Statutes."
SECTION 6.  G.S. 35A‑1111(b) reads as rewritten:
"(b)	If a multidisciplinary evaluation is ordered, the clerk shall name a designated agency and order it to prepare, cause to be prepared, or assemble a current multidisciplinary evaluation of the respondent. The agency shall file the evaluation with the clerk not later than 30 days after the agency receives the clerk's order. The multidisciplinary evaluation shall be filed in the proceeding for adjudication of incompetence, in the proceeding for appointment of a guardian under Subchapter II of this Chapter, or both. Unless otherwise ordered by the clerk, the agency shall send copies of the evaluation to the petitioner and the respondent's counsel and guardian ad litem  not later than 30 days after the agency receives the clerk's order. The evaluation shall be kept under such conditions as directed by the clerk and its contents revealed only as directed by the clerk. The evaluation shall not be a public record and shall not be released except by order of the clerk."
SECTION 7.  G.S. 35A‑1112(a) reads as rewritten:
"(a)	The hearing on the petition shall be at the date, time, and place set forth in the final notice of hearing and shall be open to the public unless the respondent or the respondent's counsel or guardian ad litem requests otherwise, in which event the clerk shall exclude all persons other than those directly involved in or testifying at the hearing."
SECTION 8.  G.S. 35A‑1113 reads as rewritten:
"§ 35A‑1113.  Hearing when incompetence determined in another state.
When the petition alleges that the respondent is incompetent on the basis of an adjudication that occurred in another state, the clerk  may:
(1)	Adjudicate incompetence on the basis of the prior adjudication, if the clerk first finds by clear, cogent, and convincing evidence that:
a.	The respondent is represented by an attorney;
b.	A certified copy of an order adjudicating the respondent incompetent has been filed in the proceeding; 
c.	The prior adjudication was made by a court of competent jurisdiction on grounds comparable to a ground for adjudication of incompetence under this Article; and
d.	The respondent, subsequent to the adjudication of incompetence in another state, assumed residence in North Carolina and needs a guardian in this State; or
(2)	Decline to adjudicate incompetence on the basis of the other state's adjudication, and proceed with an adjudicatory hearing as in any other case pursuant to this Article."
SECTION 9.  G.S. 35A‑1114(c) reads as rewritten:
"(c)	Upon filing of the motion for appointment of an interim guardian, the clerk shall immediately set a date, time, and place for a hearing on the motion. The motion and a notice setting the date, time, and place for the hearing shall be served promptly on the respondent and on the respondent's counsel, the respondent's guardian ad litem, and other persons the clerk may designate. The hearing shall be held as soon as possible but no later than 15 days after the motion has been served on the respondent."
SECTION 10.  G.S. 35A‑1116(c) reads as rewritten:
"§ 35A‑1116.  Costs and fees.
(a)	Except as otherwise provided herein, costs shall be assessed as in special proceedings. Costs, including witness fees and, in the clerk's discretion, any reasonable fees and expenses of counsel for the petitioner  may be taxed against either party in the discretion of the court unless:
(1)	The clerk finds that the petitioner did not have reasonable grounds to bring the proceeding, in which case costs shall be taxed to the petitioner; or
(2)	The respondent is indigent, in which case the costs shall be waived by the clerk if not taxed against the petitioner as provided above or otherwise paid as provided in subsection (b) or (c).
(b)	The cost of a multidisciplinary evaluation order pursuant to G.S. 35A‑1111, witness fees, and fees of a guardian ad litem shall be assessed as follows:
(1)	If the respondent is adjudicated incompetent and is not indigent, the cost shall be assessed against the respondent;
(2)	If the respondent is adjudicated incompetent and is indigent, the cost shall be borne by the Department of Health and Human Services;
(3)	If the respondent is not adjudicated incompetent, the cost may be taxed against either party, apportioned among the parties, or borne by the Department of Health and Human Services, in the discretion of the court.
(c)	The fees of the respondent's court‑appointed counsel  shall be paid by:
(1)	The respondent, if the respondent is adjudicated incompetent and is not indigent;
(2)	The petitioner, if the respondent is not adjudicated incompetent and the clerk finds that there were not reasonable grounds to bring the proceeding;
(3)	The Office of Indigent Defense Services in all other cases.
(c1)	Mediator fees and other costs associated with mediation shall be assessed in accordance with G.S. 7A‑38.3B.
(d)	The provisions of this section shall also apply to all parties to any proceedings under this Chapter, including a guardian who has been removed from office and the sureties on the guardian's bond."
SECTION 11.  G.S. 35A‑1130(c) reads as rewritten:
"(c)	At the hearing on the motion, the ward shall be entitled to be represented by counsel retained by the ward or by an attorney appointed in accordance with G.S. 35A‑1107.1. Upon motion of any party or the clerk's own motion, the clerk may order a multidisciplinary evaluation. The ward has a right, upon request by the ward, the ward's counsel, or the ward's guardian ad litem to trial by jury. Failure to request a trial by jury shall constitute a waiver of the right. The clerk may nevertheless require trial by jury in accordance with G.S. 1A‑1, Rule 39(b), Rules of Civil Procedure, by entering an order for trial by jury on his own motion. If there is a jury in a proceeding for restoration to competency, it shall be a jury of six persons selected in accordance with the provisions of Chapter 9 of the General Statutes."
SECTION 12.  G.S. 35A‑1202(3) reads as rewritten:
"When used in this Subchapter, unless a contrary intent is indicated or the context requires otherwise:
…
(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, to serve as a guardian ad litem, or 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 a general guardian or guardian of the person.
…."
SECTION 13.  G.S. 35A‑1211(a) reads as rewritten:
"(a)	Application for appointment of a guardian and related motions and notices shall be served on the respondent or guardian ad litem, respondent's counsel, other parties of record, and such other persons as the clerk shall direct."
SECTION 14.  On or before October 1, 2008, the Office of Indigent Defense Services shall adopt and implement rules governing the appointment, discharge, and compensation of attorneys appointed to represent respondents under Chapter 35A of the General Statutes in accordance with G.S. 35A‑1107.1, as enacted in Section 3 of this act.
SECTION 15.  There is appropriated from the General Fund to the Judicial Department, Office of Indigent Defense Services, the sum of thirty thousand dollars ($30,000) for the 2007‑2008 fiscal year to develop educational and training resources for attorneys who represent respondents in incompetency and guardianship proceedings.
SECTION 16.  There is appropriated from the General Fund to the Judicial Department, Office of Indigent Defense Services, the sum of thirty thousand dollars ($30,000) for the 2007‑2008 fiscal year and the sum of thirty thousand dollars ($30,000) for the 2008‑2009 fiscal year to partially offset personnel costs related to the appointment, supervision, and training of attorneys who are appointed to represent respondents in incompetency and guardianship proceedings.
SECTION 17.  Sections 15 and 16 of this act become effective July 1, 2007. The remainder of this act becomes effective October 1, 2008, and applies to proceedings, motions, orders, or applications filed on or after that date.