A BILL TO BE ENTITLED
AN ACT to make clarifications to the entitlement to counsel and the procedures for appointment.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 35A‑1116 reads as rewritten:
"§ 35A‑1116.  Costs and fees.
(a)	Except as otherwise provided herein, costs shall be assessed as in special proceedings. Costs, including any reasonable fees and expenses of counsel for the petitioner which the clerk, in his discretion, may allow, 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 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)	Witness fees  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;
(2a)	The petitioner for any of the petitioner's witnesses and the respondent for any of the respondent's witnesses when the clerk finds there were reasonable grounds to bring the proceeding, the respondent was not adjudicated incompetent, and the respondent is not indigent;
(3)	The Administrative Office of the Courts  for witness fees for the respondent, if the respondent is indigent.
(c1)	Mediator fees and other costs associated with mediation shall be assessed in accordance with G.S. 7A‑38.3B.
(c2)	The fees of an appointed guardian ad litem 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 proceedings.
(3)	The Office of Indigent Defense Services in all other cases.
(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 2.  G.S. 35A‑1207(a) reads as rewritten:
"(a)	Any interested person may file a motion in the cause with the clerk in the county where a guardianship is docketed to request modification of the order appointing a guardian or guardians or consideration of any matter pertaining to the guardianship. If the clerk determines that the ward's interests are not adequately represented, the ward is entitled to be represented at the hearing on the motion by counsel of the ward's own choice or by an appointed guardian ad litem. Appointment and discharge of an appointed guardian ad litem shall be in accordance with rules adopted by the Office of Indigent Defense Services."
SECTION 3.  G.S. 35A‑1290(a) reads as rewritten:
"(a)	The clerk has the power and authority on information or complaint made to remove any guardian appointed under the provisions of this Subchapter, to appoint successor guardians, and to make rules or enter orders for the better management of estates and the better care and maintenance of wards and their dependents. At any hearing to remove an appointed guardian or to appoint a successor guardian, if the clerk determines that the ward's interests are not adequately represented, the ward is entitled to be represented by counsel of the ward's own choice or by an appointed guardian ad litem. Appointment and discharge of an appointed guardian ad litem shall be in accordance with rules adopted by the Office of Indigent Defense Services."
SECTION 4.  G.S. 35A‑1293 reads as rewritten:
"§ 35A‑1293.  Appointment of successor guardian.
Upon the removal, death, or resignation of a guardian, the clerk shall appoint a successor guardian following the same criteria that would apply to the initial appointment of a guardian. If the clerk determines that the ward's interests are not adequately represented, the ward is entitled to be represented by counsel of the ward's own choice or by an appointed guardian ad litem. Appointment and discharge of an appointed guardian ad litem shall be in accordance with rules adopted by the Office of Indigent Defense Services."
SECTION 5.  G.S. 14‑208.40B(b) reads as rewritten:
"(b)	If the Department determines that the offender falls into one of the categories described in G.S. 14‑208.40(a), the Department shall schedule a hearing in the court of the county in which the offender resides. The Department shall notify the offender of the Department's determination and the date of the scheduled hearing by certified mail sent to the address provided by the offender pursuant to G.S. 14‑208.7. The hearing shall be scheduled no sooner than 15 days from the date the notification is mailed. Receipt of notification shall be presumed to be the date indicated by the certified mail receipt. Upon the court's determination that the offender is indigent and entitled to counsel, the court shall assign counsel to represent the offender at the hearing pursuant to rules adopted by the Office of Indigent Defense Services."
SECTION 6.  G.S. 7A‑451(c) reads as rewritten:
"(c)	In any capital case, an indigent defendant who is under a sentence of death and desires counsel may apply to the Office of Indigent Defense Services for the appointment of counsel to represent the defendant in preparing, filing, and litigating a motion for appropriate relief. The application for the appointment of such postconviction counsel may be made prior to completion of review on direct appeal and shall be made no later than 10 days from the latest of the following:
(1)	The mandate has been issued by the Supreme Court of North Carolina on direct appeal pursuant to N.C.R. App. P. 32(b) and the time for filing a petition for writ of certiorari to the United States Supreme Court has expired without a petition being filed;
(2)	The United States Supreme Court denied a timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina; or
(3)	The United States Supreme Court granted the defendant's or the State's timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina, but subsequently left the defendant's death sentence undisturbed.
 Upon application, supported by the defendant's affidavit, the Office of Indigent Defense Services shall determine whether the defendant was previously adjudicated indigent for purposes of trial or direct appeal. If the defendant was previously adjudicated indigent, the defendant shall be presumed indigent for purposes of this subsection and the Office of Indigent Defense Services shall appoint two counsel to represent the defendant. If the defendant was not previously adjudicated indigent, the Office of Indigent Defense Services shall request that the superior court in the district where the defendant was indicted determine whether the defendant is indigent. If the court finds that the defendant is indigent, the Office of Indigent Defense Services shall then appoint two counsel to represent the defendant. The defendant does not have a right to be present at the time of appointment of counsel, and the appointment need not be made in open court. "
SECTION 7.  This act becomes effective July 1, 2009.