A BILL TO BE ENTITLED
AN ACT to amend the procedures for determining incompetency under the laws relating to guardianship, as recommended by the house study committee on state guardianship laws.
The General Assembly of North Carolina enacts:
SECTION 1.  The Revisor of Statutes shall substitute in Chapter 35A of the General Statutes, wherever they occur, the terms "incompetent," "incompetency," "competency," and "competent," respectively, with the terms "incapacitated," "incapacity," "legal capacity," and "not capacitated," respectively, unless the terms are otherwise amended by this act.
SECTION 2.  G.S. 35A‑1101 reads as rewritten:
"§ 35A‑1101.  Definitions.
When used in this Subchapter:
		
(3)	"Clerk" means the clerk of superior court.
(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.
	
(6)	"Guardian ad litem" means a guardian appointed pursuant to G.S. 1A‑1, Rule 17, Rules of Civil Procedure.
(7)	"Incapacitated adult" means an adult or emancipated minor who is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability, even with the use of appropriate technological assistance, to meet essential requirements for physical health, safety, or self‑care or manage the individual's property or business affairs.
(8)	"Incapacitated minor" means a minor who is at least 17 1/2 years of age and who is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability, even with the use of appropriate technological assistance, to meet essential requirements for physical health, safety, or self‑care or manage the individual's property or business affairs.
(9)	"Indigent" means unable to pay for legal representation and other necessary expenses of a proceeding brought under this Subchapter.
	
(11)	"Interim guardian" means 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.
			
(15)	"Respondent" means a person who is alleged to be incompetent in a proceeding under this Subchapter.
(16)	"Treatment facility" has the same meaning as "facility" in G.S. 122C‑3(14), and includes group homes, halfway houses, and other community‑based residential facilities.
(17)	"Ward" means a person who has been adjudicated incompetent or an adult or minor for whom a guardian has been appointed by a court of competent jurisdiction."
SECTION 3.  G.S. 35A‑1108 reads as rewritten:
"§ 35A‑1108.  Issuance of notice.
(a)	Within five days after filing of the petition, the clerk shall issue a written notice of the date, time, and place for a hearing on the petition, which shall be held not less than 10 days nor more than 30 days after service of the notice and petition on the respondent, unless the clerk extends the time for good cause, for preparation of a professional  evaluation or for the completion of a mediation.
(b)	If a professional evaluation or mediation is ordered after a notice of hearing has been issued, the clerk may extend the time for hearing and issue a notice to the parties that the hearing has been continued, the reason therefor, and the date, time, and place of the new hearing, which shall not be less than 10 days nor more than 30 days after service of such notice on the respondent.
(c)	Subsequent notices to the parties shall be served as provided by G.S. 1A‑1, Rule 5, Rules of Civil Procedure, unless the clerk orders otherwise."
SECTION 4.  G.S. 35A‑1111 reads as rewritten:
"§ 35A‑1111.  Professional evaluation.
(a)	To assist in determining the nature and extent of a respondent's incapacity, or to assist in developing an appropriate guardianship plan and program, the clerk may order that a professional evaluation of the respondent be performed. The clerk shall order a professional evaluation upon the request of the respondent or the respondent's counsel or guardian ad litem. The clerk may order that the respondent attend a professional evaluation for the purpose of being evaluated.
(b)	If a professional evaluation is ordered, a designated agency, physician, psychologist, or other professional who is qualified to evaluate the respondent's alleged incapacity shall examine the respondent. The evaluation shall be filed with the clerk not later than 30 days after the clerk's order. The agency shall provide copies of the evaluation to the petitioner and to the respondent or the respondent's counsel or guardian ad litem. The evaluation shall not be a public record and shall not be released except by order of the clerk.
(c)	Unless otherwise directed by the clerk, the evaluation shall contain:  (i) a description of the nature, type, and extent of the respondent's specific cognitive and functional limitations; (ii) an evaluation of the respondent's mental and physical condition and, if appropriate, educational potential, adaptive behavior, and social skills; (iii) a prognosis for improvement and a recommendation as to the appropriate treatment or habilitation plan; and (iv) the date of any assessment or examination upon which the report is based.
	
(e)	If otherwise admissible, the professional evaluation may be considered at the hearing for adjudication of incapacity, the hearing for appointment of a guardian under Subchapter II of this Chapter, or both."
SECTION 5.  G.S. 35A‑1112 reads as rewritten:
"§ 35A‑1112.  Hearing on petition; adjudication order.
(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 his 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.
(b)	The petitioner and the respondent are entitled to present testimony and documentary evidence, to subpoena witnesses and the production of documents, and to examine and cross‑examine witnesses.
(c)	The clerk shall dismiss the proceeding if the finder of fact, whether the clerk or a jury, does not find the respondent to be incompetent.
(d)	If the finder of fact, whether the clerk or the jury, finds by clear, cogent, and convincing evidence that the respondent is incapacitated, the clerk shall enter an order adjudicating the respondent incapacitated. If the clerk is the finder of fact, the clerk shall include in the order findings on the nature and extent of the ward's incapacity.
(e)	Following an adjudication of incapacity, the clerk shall consider appointing a guardian pursuant to Subchapter II of this Chapter or, for good cause shown, transfer the proceeding for the appointment of a guardian to any county identified in G.S. 35A‑1103. The transferring clerk shall enter a written order authorizing the transfer. The clerk in the transferring county shall transfer all original papers and documents, including the professional evaluation, if any, to the transferee county and close his file with a copy of the adjudication order and transfer order.
(f)	If the adjudication occurs in any county other than the county of the respondent's residence, a certified copy of the adjudication order shall be sent to the clerk in the county of the ward's legal residence, to be filed and indexed as in a special proceeding of that county.
(g)	Except as provided in G.S. 35A‑1114(f), a proceeding filed under this Article may be voluntarily dismissed as provided in G.S. 1A‑1, Rule 41, Rules of Civil Procedure."
SECTION 6.  G.S. 35A‑1116(b) reads as rewritten:
"(b)	The cost of a professional evaluation order  shall be assessed as follows:
(1)	If the respondent is adjudged incapacitated and is not indigent, the cost shall be assessed against the respondent;
(2)	If the respondent is adjudged incapacitated and is indigent, the cost shall be borne by the Department of Health and Human Services;
(3)	If the respondent is not adjudged incapacitated, 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."
SECTION 7.  G.S. 35A‑1120 reads as rewritten:
"§ 35A‑1120.  Appointment of guardian.
If the respondent is adjudged incapacitated, a guardian or guardians may be appointed in the manner provided for in Subchapter II of this Chapter."
SECTION 8.  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 or guardian ad litem, and a guardian ad litem shall be appointed in accordance with rules adopted by the Office of Indigent Defense Services if the ward is indigent and not represented by counsel. The clerk may order a professional evaluation of the respondent pursuant to G.S. 35A‑1111 upon motion of the respondent or the respondent's counsel or guardian ad litem. The ward has a right, upon request by the ward or the ward's counsel or 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 the clerk's own motion. If there is a jury in a proceeding for restoration to capacity, it shall be a jury of six persons selected in accordance with the provisions of Chapter 9 of the General Statutes."
SECTION 9.  G.S. 35A‑1202(13) is repealed.
SECTION 10.  G.S. 35A‑1210 reads as rewritten:
"§ 35A‑1210.  Application before clerk.
Any individual, corporation, or disinterested public agent may file an application for the appointment of a guardian for an incapacitated person by filing the same with the clerk. The application may be joined with or filed subsequent to a petition for the adjudication of incapacity 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, the applicant's relationship if any to the respondent or ward, and the applicant's 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 the ward or respondent is entitled; 
(4a)	If a plenary guardianship is requested, the reasons why a limited guardianship is inappropriate;
(4b)	If a limited guardianship is requested, the powers that should be granted to the guardian and the rights that should be retained by the ward; 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 11.  G.S. 35A‑1212 reads as rewritten:
"§ 35A‑1212.  Hearing before clerk on appointment of guardian.
(a)	The clerk shall make such inquiry and receive such evidence as the clerk deems necessary to determine:
(1)	The nature and extent of the ward's need for a guardian;
(1a)	Whether the ward's needs can be met by means other than the appointment of a guardian;
(2)	The assets, liabilities, and needs of the ward; and
(3)	Who, in the clerk's discretion, can most suitably serve as the guardian or guardians.
If the clerk determines that the nature and extent of the ward's capacity justifies ordering a limited guardianship, the clerk shall do so.
(b)	If a professional evaluation has not been performed, the clerk may order that a professional evaluation of the respondent be performed pursuant to G.S. 35A‑1111 upon the request of the respondent or the respondent's counsel or guardian ad litem.
(c)	The clerk may require a report prepared by a designated agency to evaluate the suitability of a prospective guardian, to include a recommendation as to an appropriate party or parties to serve as guardian, or both, based on the nature and extent of the needed guardianship and the ward's assets, liabilities, and needs.
(d)	If a designated agency has not been named pursuant to G.S. 35A‑1111, the clerk may, at any time he finds that the best interest of the ward would be served thereby, name a designated agency."
SECTION 12.  G.S. 35A‑1215 reads as rewritten:
"§ 35A‑1215.  Clerk's order; issuance of letters of appointment.
(a)	When appointing a guardian, the clerk shall enter an order setting forth:
(1)	The nature of the guardianship or guardianships to be created and the name of the person or entity appointed to fill each guardianship; and
(2)	The powers and duties of the guardian or guardians, which shall include, unless the clerk orders otherwise, (i) with respect to a guardian of the person and general guardian, the powers and duties provided under G.S. 35A, Article 8, and (ii) with respect to a guardian of the estate and general guardian, the powers, and duties provided under G.S. 35A, Article 9 and Subchapter III; and
(3)	The identity of the designated agency if there is one.
(a1)	The clerk may not enter an order appointing a guardian for an incapacitated person unless the clerk finds that the ward's identified needs cannot be met adequately by means other than appointment of a guardian.
(a2)	The clerk shall grant to a guardian only those powers necessitated by the ward's limitations and demonstrated needs and make appointive or other orders that encourage the development of the ward's maximum self‑reliance and independence.
(b)	If the clerk orders a limited guardianship as authorized by G.S. 35A‑1212(a), the clerk may order that the ward retain certain legal rights and privileges to which the ward was entitled before the ward was adjudged incapacitated. Any order of limited guardianship shall include findings as to the nature and extent of the ward's incapacity as it relates to the ward's need for a guardian or guardians.
(c)	The clerk shall issue the guardian or guardians letters of appointment as provided in G.S. 35A‑1206."
SECTION 13.  This act becomes effective October 1, 2009, and applies to proceedings filed or pending on or after that date.