FILED SENATE
Mar 14, 2023
GENERAL ASSEMBLY OF NORTH CAROLINA
S.B. 308
SESSION 2023 PRINCIPAL CLERK
S D
SENATE BILL DRS35084-MQ-62
Short Title: Guardianship Rights. (Public)
Sponsors: Senators Galey, Daniel, and Overcash (Primary Sponsors).
Referred to:
1 A BILL TO BE ENTITLED
2 AN ACT TO UPDATE THE GUARDIANSHIP ACCOUNTING STATUTE TO ALLOW FOR
3 CERTAIN TIMING ELECTIONS AND EXTENSIONS, TO AMEND THE GENERAL
4 STATUTES TO PREVENT THE ABUSE OR MISUSE OF AUTHORITY GRANTED TO
5 AN AGENT IN A POWER OF ATTORNEY, AND TO PROMOTE THE RIGHTS AND
6 INDEPENDENCE OF PERSONS SUBJECT TO THE GUARDIANSHIP PROCESS AND
7 TO IMPROVE JUDICIAL OVERSIGHT AND ACCOUNTABILITY FOR GUARDIANS
8 OF THE PERSON, AS RECOMMENDED BY THE NORTH CAROLINA BAR
9 ASSOCIATION.
10 The General Assembly of North Carolina enacts:
11
12 PART I. GUARDIANSHIP ANNUAL ACCOUNTING CHANGES
13 SECTION 1.1. G.S. 35A-1264 reads as rewritten:
14 "§ 35A-1264. Annual accounts.
15 Every Unless the time for filing the annual account has been extended by the clerk, every
16 guardian shall, within 30 days after the expiration of one year from the date of his qualification
17 or appointment, and annually, for so long as any of the estate remains in his the guardian's control,
18 file annually in the office of the clerk an inventory and account, under oath, of the amount of
19 property the guardian received by him, or invested by him, and invested, including the manner
20 and nature of such investment, and his all receipts and disbursements for the past year in the form
21 of debit and credit. All accounts shall be due within 30 days after the close of the fiscal year
22 selected by the guardian, and annually thereafter. The election of a fiscal year shall be made by
23 the guardian upon filing of the first annual account. In no event may a guardian select a fiscal
24 year-end that is fewer than 11 months nor more than 12 months from the date of the guardian's
25 qualification or appointment. The guardian shall produce vouchers for all payments or verified
26 proof for all payments in lieu of vouchers. The clerk may examine on oath such the accounting
27 party, or any other person, concerning the receipts, disbursements or any other matter relating to
28 the estate; and having estate. The clerk shall carefully revised review and audited such audit the
29 account, and, if he approve the same, he approved, must endorse his the approval thereon, on the
30 account and cause the account to be recorded, which shall be deemed prima facie evidence of
31 correctness."
32 SECTION 1.2. This Part is effective when it becomes law and applies to annual
33 account filings made on or after that date.
34
35 PART II. PREVENT ABUSE OF AUTHORITY IN POWERS OF ATTORNEY
36 SECTION 2.1. G.S. 32C-1-116 reads as rewritten:
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 General Assembly Of North Carolina Session 2023
1 "§ 32C-1-116. Judicial relief.
2 (a) The clerks of superior court of this State shall have original jurisdiction of
3 proceedings under this Chapter. Except as provided in subdivision (4) of this subsection, the clerk
4 of superior court's jurisdiction is exclusive. The following proceedings are included:
5 (1) To compel an accounting by the agent, including the power to compel the
6 production of evidence substantiating any expenditure made by the agent from
7 the principal's assets.
8 (2) To terminate a power of attorney or to suspend or terminate the authority of
9 an agent where a guardian of the estate or a general guardian has been
10 appointed.
11 (3) To determine compensation and expenses for an agent under
12 G.S. 32C-1-112(b) and G.S. 32C-1-112(c).
13 (4) To determine an agent's authority and powers, to construe the terms of a power
14 of attorney created or governed by this Chapter, and to determine any question
15 arising in the performance by an agent of the agent's powers and authority
16 under a power of attorney governed by this Chapter, including, but not limited
17 to, the following proceedings:
18 a. To determine whether and to what extent an agent holds a specific
19 grant of authority under G.S. 32C-2-201.
20 b. To approve an agent's ability to make a gift on behalf of the principal
21 where the gift is governed by G.S. 32C-2-217 because the power of
22 attorney grants the agent only general authority with respect to gifts.
23 c. To authorize the agent to make a gift of the principal's property under
24 G.S. 32C-2-218.
25 d. To authorize the agent to do an act described in G.S. 32C-2-201(a),
26 other than the act to make a gift, under G.S. 32C-2-219.
27 e. To determine whether and to what extent acceptance of a power of
28 attorney shall be mandated under G.S. 32C-1-120(f).
29 Any party may file a notice of transfer of a proceeding pursuant to this
30 subdivision to the superior court division of the General Court of Justice as
31 provided in G.S. 28A-2-6(h). In the absence of a removal to superior court,
32 Article 26 of Chapter 1 of the General Statutes shall apply to a proceeding
33 commenced under this Chapter to the extent consistent with this subsection.
34 …
35 (f) Upon motion by the principal, principal individually and not through an agent, the
36 clerk of superior court shall dismiss a petition filed under subsection (a) of this section, unless
37 the clerk of superior court determines the principal is incapacitated within the meaning of
38 G.S. 32C-1-102(6).
39 (g) Any party adversely affected by an order of the clerk of superior court in a proceeding
40 commenced under subsection (a) of this section may appeal the clerk's order as provided in
41 G.S. 1-301.3."
42 SECTION 2.2. This Part is effective when it becomes law and applies to proceedings
43 filed on or after that date.
44
45 PART III. CHANGES TO GUARDIANSHIP STATUTES
46 SECTION 3.1. G.S. 35A-1101 reads as rewritten:
47 "§ 35A-1101. Definitions.
48 The following definitions apply in this Subchapter:
49 …
50 (7) Incompetent adult. – An adult or emancipated minor who lacks sufficient
51 capacity to manage the adult's own affairs or to make or communicate
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1 important decisions concerning the adult's person, family, or property whether
2 the lack of capacity is due to mental illness, intellectual disability, epilepsy,
3 cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or
4 condition. An adult or emancipated minor does not lack capacity if, by means
5 of a less restrictive alternative, he or she is able to sufficiently (i) manage his
6 or her affairs and (ii) communicate important decisions concerning his or her
7 person, family, and property.
8 (8) Incompetent child. – A minor who is at least 17 1/2 years of age and who,
9 other than by reason of minority, lacks sufficient capacity to make or
10 communicate important decisions concerning the child's person, family, or
11 property whether the lack of capacity is due to mental illness, intellectual
12 disability, epilepsy, cerebral palsy, autism, inebriety, disease, injury, or
13 similar cause or condition. An incompetent child does not lack capacity if, by
14 means of a less restrictive alternative, he or she is able to sufficiently (i)
15 manage his or her affairs and (ii) communicate important decisions
16 concerning his or her person, family, and property.
17 (9) Indigent. – Unable to pay for legal representation and other necessary
18 expenses of a proceeding brought under this Subchapter.
19 (10) Inebriety. – The habitual use of alcohol or drugs rendering a person
20 incompetent to transact ordinary business concerning the person's estate,
21 dangerous to person or property, cruel and intolerable to family, or unable to
22 provide for family.
23 (10a) Intellectual disability. – Significantly subaverage general intellectual
24 functioning existing concurrently with deficits in adaptive behavior and
25 manifested before age 22.
26 (11) Interim guardian. – A guardian, appointed prior to adjudication of
27 incompetence and for a temporary period, for a person who requires
28 immediate intervention to address conditions that constitute imminent or
29 foreseeable risk of harm to the person's physical well-being or to the person's
30 estate.
31 (11a) Less restrictive alternative. – An arrangement enabling a respondent to
32 manage his or her affairs or to make or communicate important decisions
33 concerning his or her person, property, and family that restricts fewer rights
34 of the respondent than would the adjudication of incompetency and
35 appointment of a guardian. The term includes supported decision making,
36 appropriate and available technological assistance, appointment of a
37 representative payee, and appointment of an agent by the respondent,
38 including appointment under a power of attorney for health care or power of
39 attorney for finances.
40 …."
41 SECTION 3.2. G.S. 35A-1106 reads as rewritten:
42 "§ 35A-1106. Contents of petition.
43 The petition shall set forth, to the extent known:known, all of the following:
44 (1) The name, age, address, and county of residence of the respondent;respondent.
45 (2) The name, address, and county of residence of the petitioner, and his the
46 petitioner's interest in the proceeding;proceeding.
47 (3) A general statement of the respondent's assets and liabilities with an estimate
48 of the value of any property, including any compensation, insurance, pension,
49 or allowance to which he the respondent is entitled;entitled.
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1 (4) A statement of the facts tending to show that the respondent is incompetent
2 and the reason or reasons why the adjudication of incompetence is
3 sought;sought.
4 (4a) A statement identifying what less restrictive alternatives have been considered
5 prior to seeking adjudication and why those less restrictive alternatives are
6 insufficient to meet the needs of the respondent.
7 (5) The name, address, and county of residence of the respondent's next of kin
8 and other persons known to have an interest in the proceeding;proceeding.
9 (6) Facts regarding the adjudication of respondent's incompetence by a court of
10 another state, if an adjudication is sought on that basis pursuant to
11 G.S. 35A-1113(1)."
12 SECTION 3.3. G.S. 35A-1107 reads as rewritten:
13 "§ 35A-1107. Right to counsel or guardian ad litem.
14 (a) The respondent is entitled to be represented by counsel of the respondent's own choice
15 or by an appointed guardian ad litem. Upon filing of the petition, an attorney shall be appointed
16 as guardian ad litem to represent the respondent unless the respondent retains counsel, in which
17 event the guardian ad litem may be discharged. Appointment and discharge of an appointed
18 guardian ad litem shall be in accordance with rules adopted by the Office of Indigent Defense
19 Services.
20 (b) An attorney appointed as a guardian ad litem under this section shall represent the
21 respondent until any of the following occurs:
22 (1) The petition is dismissed.
23 (2) A guardian is appointed under Subchapter II of this Chapter.
24 (3) Other relief is granted under Article 2 of this Subchapter.
25 (c) After being appointed, the guardian ad litem shall personally visit the respondent as
26 soon as possible and shall make every reasonable effort to determine the respondent's wishes
27 regarding the incompetency proceeding and any proposed guardianship. During the personal
28 visit, and at any time upon request by the respondent, the guardian ad litem shall explain the
29 notice of rights required under G.S. 35A-1117 to the respondent. The guardian ad litem shall
30 present to the clerk the respondent's express wishes at all relevant stages of the proceedings. The
31 guardian ad litem also may make recommendations to the clerk concerning the respondent's best
32 interests if those interests differ from the respondent's express wishes. In appropriate cases, the
33 guardian ad litem shall consider the possibility of a limited guardianship and shall make
34 recommendations to the clerk concerning the rights, powers, and privileges that the respondent
35 should retain under a limited guardianship."
36 SECTION 3.4. G.S. 35A-1108 reads as rewritten:
37 "§ 35A-1108. Issuance of notice.
38 (a) Within five days after filing of the petition, the clerk shall issue a written notice of the
39 date, time, and place for a hearing on the petition, which shall be held not less than 10 days nor
40 more than 30 days after service of the notice of rights required under G.S. 35A-1117 and the
41 petition and initial notice of hearing on the respondent, unless the clerk extends the time for good
42 cause, for preparation of a multidisciplinary evaluation as provided in G.S. 35A-1111, or for the
43 completion of a mediation.
44 (b) If a multidisciplinary evaluation or mediation is ordered after a notice of hearing has
45 been issued, the clerk may extend the time for hearing and issue a notice to the parties that the
46 hearing has been continued, the reason therefor, and the date, time, and place of the new hearing,
47 which shall not be less than 10 days nor more than 30 days after service of such notice on the
48 respondent.
49 (c) Subsequent notices to the parties shall be served as provided by G.S. 1A-1, Rule 5,
50 Rules of Civil Procedure, unless the clerk orders otherwise."
51 SECTION 3.5. G.S. 35A-1109 reads as rewritten:
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1 "§ 35A-1109. Service of notice and petition.
2 (a) Copies of the notice of rights required under G.S. 35A-1117 and the petition and
3 initial notice of hearing shall be personally served on the respondent. Respondent's counsel or
4 guardian ad litem shall be served pursuant to G.S. 1A-1, Rule 4, Rules of Civil Procedure. A
5 sheriff who serves the notice and petition shall do so without demanding his fees in advance. The
6 petitioner, within five days after filing the petition, shall mail or cause to be mailed, by first-class
7 mail, copies of the notice of rights and the petition and initial notice of hearing to the respondent's
8 next of kin alleged in the petition and any other persons the clerk may designate, unless such
9 person has accepted notice. Proof of such mailing or acceptance shall be by affidavit or certificate
10 of acceptance of notice filed with the clerk. The clerk shall mail, by first-class mail, copies of
11 subsequent notices to the next of kin alleged in the petition and to such other persons as the clerk
12 deems appropriate.
13 (b) Expired August 1, 2020, pursuant to Session Laws 2020-3, s. 4.11(b)."
14 SECTION 3.6. G.S. 35A-1116 reads as rewritten:
15 "§ 35A-1116. Costs and fees.
16 (a) Costs. – Except as otherwise provided herein, costs shall be assessed as in special
17 proceedings. Costs, including any reasonable fees and expenses of counsel for the petitioner
18 which the clerk, in his discretion, may allow, may be taxed against either party counsel, shall be
19 taxed against any party or apportioned among the parties, in the discretion of the