S.L. 1979-751

NORTH CAROLINA GENERAL ASSEMBLY

1979 SESSION

CHAPTER 751

HOUSE BILL 549

AN ACT TO MAKE CHANGES IN G.S. CHAPTER 35, ARTICLE 1A, AND OTHER LAWS CONCERNING GUARDIANSHIP OF INCOMPETENT ADULTS.

The General Assembly of North Carolina enacts:

Section 1. G.S. 35-1.7 is amended by adding the following subsections:

"(27) The term 'autism' refers to a person who has a physical disorder of the brain that includes disturbance in the developmental rate of physical, social, and language skills, abnormal responses to sensations, absence or delay in speech or language, or abnormal ways of relating to people, objects, and events, and that occurs sometimes by itself and sometimes in connection with other brain-functioning disorders. Autism is (a) a syndrome consisting of withdrawal, very inadequate social relationships, exceptional object relationships, language disturbances, and monotonously repetitive motor behavior; many children with autism will also be seriously impaired in general intellectual functioning; and (b) mental illness observed in young children characterized by severe withdrawal and inappropriate response to external stimulation.

(28) The term 'cerebral palsy' refers to a person who has a muscle dysfunction, characterized by impairment of movement, often combined with speech impairment, and caused by abnormality of, or damage to, the brain. Cerebral palsy is a disorder dating from birth or early infancy, nonprogressive, characterized by examples of aberrations of motor function (paralysis, weakness, or incoordination) and often other manifestations of organic brain damage such as sensory disorders, seizures, mental retardation, learning difficulty, and behavioral disorders.

(29) The term 'epilepsy' refers to a person who is subject to convulsive attacks and during these attacks usually loses consciousness or is subject to convulsive seizures. Epilepsy is a clinical disorder characterized by single or recurring attacks of loss of consciousness, convulsive movements, or disturbances of feeling or behavior. These transient episodes are associated with excessive neuronal discharges occuring diffusely or focally in the brain. The sites of neuronal discharge determine the clinical manifestations of the seizure.

(30) The term 'mental illness' refers to a person who has an illness that so lessens the capacity of the person to use self-control, judgment, and discretion in the conduct of his affairs and social relations as to make it necessary or advisable for him to be under treatment, care supervision, guidance, or control.

(31) The term 'mental retardation' refers to a person who has significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period."

Sec. 2. G.S. 35-1.8(a) is amended by striking the second sentence and inserting in lieu thereof the following as a new second sentence:

"Venue for such proceedings is in the county where the respondent resides, where he has real property, where either or both of his parents or next of kin reside, or where he is present, or if the respondent is an inpatient or resident of a treatment facility, venue is also in the county in which he resided when admitted to the facility."

Sec. 3. G.S. 35-1.8(b) is amended by adding the following after the last sentence thereof:

"If a petition for adjudication of incompetency has been filed against the respondent, alleging him to be mentally ill, under the provisions of G.S. Chapter 35, Article 2 and the petition has been dismissed after a hearing on the merits, the clerk on his own motion may dismiss a petition filed under this Article against the same person, alleging him to be mentally ill, unless the petition alleges substantially new facts, not previously alleged in the Article 2 proceeding, tending to prove he is an incompetent adult, as defined in this Article, because of mental illness.

This Article does not apply to persons who are senile or have senile dementia unless they also are mentally ill, mentally retarded, epileptic, cerebral palsied, or autistic adults."

Sec. 4. Section 35-1.10 is amended in the first sentence by striking the words "the appointment of a guardian for" and inserting in lieu thereof the words "the adjudication of incompetence of".

Sec. 5. G.S. 35-1.11 is rewritten to read as follows:

"§ 35-1.11. Costs in action. — Costs shall be assessed as in special proceedings and shall be taxed against the respondent unless in the clerk's opinion the petitioner did not have reasonable grounds to bring the proceedings, in which case they shall be taxed to the petitioner. If the respondent is indigent, the costs shall be borne by the Administrative Office of the Courts."

Sec. 6. G.S. 35-1.12 is amended by repealing subparagraph (6) and in subparagraph (4) by striking the words "the appointment of a guardian is sought" and inserting in lieu thereof the words "the adjudication of incompetence is sought."

Sec. 7. G.S. 35-1.13 is rewritten to read as follows:

"§ 35-1.13. Service of petition. — A copy of the petition and the written notice of the time, date, and place set for a hearing on the petition shall be served on the respondent and on his guardian ad litem or counsel appointed by the clerk, if any. The petitioner shall mail, by first-class mail, a copy of the petition and the written notice to the person or persons designated in G.S. 35-1.12(5). The clerk, on his own motion, may order notice to be served on any other person pursuant to Rule 4 or the clerk may mail, by first-class mail, a copy of the petition and the written notice to any other person. The sheriff shall serve notice on the designated persons without demanding his fees in advance. Service shall be made as provided by G.S. 1A-1, Rules of Civil Procedure, Rule 4."

Sec. 8. G.S. 35-1.14 is amended by adding the words "to the parties" after the word "notices" and before the words "shall be served".

Sec. 9. G.S. 35-1.15(b) is rewritten to read as follows:

"(b) The petition shall set forth facts tending to show that there is reasonable cause to believe that the respondent is an incompetent adult and that he is in a condition that, unless appropriate intervention is provided by way of the appointment of a guardian to consent on the respondent's behalf to intervention, constitutes or reasonably appears to constitute an imminent or foreseeable danger to his physical well-being."

Sec. 10. G.S. 35-1.15(c) is amended by adding a new second sentence to read as follows:

"If the petition does not allege that the respondent is indigent, the clerk nevertheless may appoint counsel or a guardian ad litem to represent him, in which case the fees of the court‑appointed counsel or guardian ad litem shall be a proper charge against the respondent."

Sec. 11. G.S. 35-1.15(c) is further amended by adding a new last sentence to read as follows:

"The hearing may be held earlier and in all cases shall be held as early as possible after the petition is filed."

Sec. 12. G.S. 35-1.15(d) is amended by deleting the next-to-last sentence and by rewriting the two first sentences to read as follows:

"If at the hearing the clerk finds that there is reasonable cause to believe that the respondent is an incompetent adult and that he is in a condition that, unless appropriate intervention is provided by way of the appointment of an interim guardian to consent on the respondent's behalf to intervention, constitutes or reasonably appears to constitute an imminent or foreseeable danger to his physical well-being, he shall immediately appoint an interim guardian, make specific findings of fact to support his conclusions, and set forth the guardian's powers and duties. The powers and duties of the interim guardian shall extend only so far as necessary to meet the emergency and in any event not more than 45 days, but the clerk may for good cause shown extend the period of interim guardianship for another 45 days."

Sec. 13. G.S. 35-1.15 is further amended by adding the following subsections:

"(e) The petitioner seeking an interim guardianship must also simultaneously file a petition under G.S. 35-1.10 for the adjudication of incompetence and may voluntarily dismiss the petition for adjudication of incompetence and for interim guardianship only before the hearing on the petition for interim guardianship.

(f) After entering his order on the petition for adjudication of incompetency, the clerk shall dismiss the petition for interim guardianship.

(g) The guardian ad litem appointed to represent the respondent in a petition for interim guardianship may waive his right to notice under G.S. 1A-1, Rules of Civil Procedure, Rule 17."

Sec. 14. G.S. 35-1.16(a) is amended in the first paragraph by striking the words "if he is indigent" and inserting in lieu thereof the words "or guardian ad litem", in the second paragraph by striking the words "unless the clerk has reason to believe he is not indigent" and inserting in lieu thereof the words "or if it is not alleged that the respondent is indigent and he fails to employ counsel before the hearing, the clerk shall immediately appoint counsel or guardian ad litem to represent him," and in the fourth paragraph by striking the period at the end of the paragraph and adding the words "unless the clerk finds that the respondent is incompetent and not indigent, in which case the fees of court-appointed counsel or guardian ad litem shall be a proper charge against the respondent."

Sec. 15. G.S. 35-1.16(b) is amended by adding to the first paragraph a new last sentence to read as follows: "Upon a motion of the respondent or on his own motion, the clerk may for good cause deny the petitioner's request for a multidisciplinary evaluation.", by repealing and rewriting the eighth paragraph to read as follows: "If no multidisciplinary evaluation has been requested, the clerk shall proceed with the hearing as set out in the original notice of hearing issued by him pursuant to G.S. 35-1.13.", and by adding the following after the last paragraph thereof:

"If a multidisciplinary evaluation does not contain medical, psychological, or social work evaluations, the designated agency nevertheless shall file it with the clerk and send copies to the petitioner and respondent and, in its report or in a transmittal letter, explain why the evaluation does not contain medical, psychological, or social work evaluations.

The clerk may not issue an order requiring that the respondent be taken into custody for the purpose of being evaluated."

Sec. 16. G.S. 35-1.16(c) is rewritten to read as follows:

"(c) Right to jury trial. At the hearing, the respondent has a right, upon request by him, his counsel, or the guardian ad litem, to trial by jury. The respondent, his counsel, or the guardian ad litem may waive the right to trial by jury by written notice filed with the clerk. If none of them request trial by jury, the clerk may nevertheless require trial by jury under G.S. Chapter 1-A, Rules of Civil Procedure, Rule 39(b) by entering an order for trial by jury on his own motion. The jury shall be composed of 12 persons chosen from the jury list of the county in accordance with the provisions of Chapter 9 of the General Statutes."

Sec. 17. G.S. 35-1.16(f) is amended by adding the words "pursuant to G.S. 35‑1.17" after the words in the first sentence "appoint a guardian."

Sec. 18. G.S. 35-1.17 is rewritten to read as follows:

"§ 35-1.17. Hearing before clerks on appointment of guardian. — (a) For the purposes of determining who the guardian or guardians shall be, the clerk shall receive whatever testimony is offered at the conclusion of the adjudication of incompetency proceeding. For good cause shown, the clerk may transfer the appointment of a guardian and the guardianship to any county identified in G.S. 35-1.8. Upon transfer, the transferring clerk shall enter a written order authorizing the same. The order shall further state the appropriate person to be appointed guardian as determined at the aforesaid hearing. This order along with a certified copy of the adjudication papers shall be sent to the clerk of the transferee county and set up in the estates division as a basis for the guardian's application, appointment, and qualification."

Sec. 19. G.S. 35-1.19 is amended by repealing the last paragraph thereof and inserting in lieu thereof the following:

"In all cases in which the clerk appoints a general guardian or a guardian of the estate, the clerk shall require the guardian to post a bond as provided by Chapter 33, Article 2. The clerk shall not require a guardian of the person to post a bond."

Sec. 20. G.S. 35-1.31 is rewritten to read as follows:

"§ 35-1.31. Status reports. — (a) Within six months after he is appointed, the general guardian or guardian of the person shall file an initial status report with the designated agency, if an agency has been appointed. The general guardian or guardian of the person shall file his second status report with the designated agency one year after he is appointed, and he shall file all subsequent reports with the designated agency annually thereafter.

(b) The general guardian or guardian of the person shall file each status report under his oath or affirmation that the report is complete and accurate so far as he is informed and can determine.

(c) The designated agency shall not make the status reports available to any one other than the guardian, the ward, or State or local human resource agencies providing services to the ward."

Sec. 21. G.S. 35-1.32(a) is amended by striking the words "either a financial or" and the words "from a guardian".

Sec. 22. G.S. 35-1.32(b)(6) is amended by striking the words "pursuant to G.S. 35‑1.38" and inserting in their place the words "pursuant to G.S. 35-1.39".

Sec. 23. G.S. 35-1.34(a)(4) is amended by adding the following sentence:

"He may not, however, consent to the sterilization of a mentally ill or mentally retarded ward, which sterilization may be performed legally only after compliance with G.S. Chapter 35, Article 7."

Sec. 24. G.S. 35-1.35 is amended by adding a new last sentence, to read as follows:

"A general guardian or a guardian of the estate shall file his inventories, accounts, and financial reports with the clerk who appointed him at the times and in the manner required by G.S. 33-36, G.S. 33-39, and G.S. 33-41, and the clerk shall file those reports in the appropriate estate file." Sec. 25. G.S. 35-1.36 is rewritten to read as follows:

"§ 35-1.36. Guardian's financial reports' costs. — The cost of filing financial reports shall be a proper charge against the ward's estate but, if the ward has no estate or has an estate with a value of less than two thousand dollars ($2,000) at the time a guardian files a report, the clerk may waive the cost of filing." Sec. 26. G.S. 35-1.38 is rewritten to read as follows:

"§ 35-1.38. Clerk's continuing jurisdiction over proceedings. — (a) Any interested person may petition the clerk in the county where the guardian was appointed for modification of his order or for consideration of any matter pertaining to the guardianship.

(b) The clerk may order a multidisciplinary evaluation or other evaluation to be made upon the filing of a petition for subsequent proceedings.

(d) The petitioner shall obtain from the clerk a time, date, and place for a hearing on the petition, and shall notify the appropriate persons of the hearing on the petition by mailing a copy of the notice and petition at least 10 days prior to the date of the hearing.

(e) If an emergency exists that threatens the physical well-being of the ward, the clerk may enter ex parte an appropriate order pending disposition of the matter at the hearing."

Sec. 27. G.S. 35-1.39 is rewritten to read as follows:

"§ 35-1.39. Proceedings to restore ward to competency. — (a) The guardian, ward, or any other interested person may file a petition with the clerk who appointed the guardian for the restoration of the ward to competency.

(b) Upon receipt of the petition, the clerk shall set a time, date, and place for a hearing. The petitioner shall cause notice to be served on the guardian and ward (unless one of them is the petitioner) and any other parties to the adjudication proceedings. Notice shall be served in accordance with the provisions of Rule 4.

(d) At the hearing on the petition, the ward shall be entitled pursuant to G.S. 35-1. 16(a) to be represented by counsel or a guardian ad litem and the clerk shall appoint counsel or a guardian ad litem if the ward is indigent, upon request shall be entitled pursuant to G.S. 35-1. 16(b) to a multidisciplinary evaluation, upon request shall be entitled pursuant to G.S. 35- 1.1 6(c) to trial by jury except that the jury shall be a jury of six persons selected in accordance with the provisions of G.S. Chapter 9, shall be entitled pursuant to G.S. 35-1. 16(d) to an open hearing, and shall be entitled pursuant to G.S. 35-1.20 to appeal the clerk's decision to the superior court de novo.

(e) If the clerk or jury shall find that the ward is not an incompetent adult, the clerk shall enter an order adjudicating that the ward is restored to competency and, upon the clerk's receipt and approval of a proper final account from the guardian, discharge the guardian."

Sec. 28. G.S. 122-36(e) is rewritten to read as follows:

"(e) The words 'mentally retarded' refer to a person who has significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during his developmental period."

Sec. 29. G.S. 35-1.1 is amended by repealing and rewriting the second paragraph to read as follows:

"A 'mentally retarded' person refers to a person who has significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during his developmental period."

Sec. 30. Chapter 35 of the General Statutes is amended by deleting the words "mental defective," or "a mental defective," or "mentally defective" wherever such words appear and inserting in lieu thereof the words "mentally retarded".

Sec. 31. Chapter 35, Article 1A is amended by striking the words "proposed ward" wherever they appear and inserting in their place the word "respondent" and by striking the word "ward" as it appears before the words "is indigent" in G.S. 35-1.12(3) and inserting in its place the word "respondent".

Sec. 32. G.S. 35-2 is amended by adding a new last paragraph, to read as follows:

"If a petition for adjudication of incompetency has been filed against the respondent, alleging him to be mentally ill, under the provisions of G.S. 35, Article 1A, and the petition has been dismissed after a hearing on the merits, the clerk on his own motion may dismiss a petition filed under this Article or this section against the same person, alleging him to be mentally ill, unless the petition alleges substantially new facts, not previously alleged in the Article 1A proceeding, tending to prove that he is incompetent, as defined in this Article, because of mental illness."

Sec. 33. The third paragraph of G.S. 35-2 is rewritten to read as follows:

"The jury shall make return of their proceedings under their hands to the clerk, who shall file and record the same; and he shall proceed to appoint a guardian of any person so found to be inebriate or incompetent by inquisition of a jury as in cases of orphans. Provided, where the person is found to be incompetent from want of understanding to manage his affairs, by reason of physical and mental weakness on account of old age and/or disease and/or other like infirmities, the clerk may appoint a trustee instead of guardian for said person. The trustee or guardian administering an estate for any person shall be subject to all the laws governing the administration of estates of minors and incompetents. The clerks of superior courts who have heretofore appointed guardians for persons described in this proviso are hereby authorized and empowered to change said appointment from guardian to trustee. The sheriffs of the several counties to whom a process is directed under the provisions of this section shall serve the same without demanding their fees in advance. And the juries of the several counties upon whom a process is served under the provisions of this section shall serve and make their returns without demanding their fees in advance."

Sec. 34. G.S. 35-4 is amended on line 14 by deleting the words "six freeholders" and inserting in lieu thereof the words "six people chosen in accordance with the provisions of G.S. Chapter 9".

Sec. 35. This act shall become effective January 1, 1980.

In the General Assembly read three times and ratified, this the 4th day of June, 1979.