Changes to guardianship may be coming to NC

Changes to guardianship may be coming to NC

By Thomas Goldsmith

When Tylor Freeman was 18, he remembers, a Buncombe County court ruled that he needed a legal guardian to help him make life decisions, because that’s what a psychologist recommended after a 10-minute interview. 

Freeman, 28, of Asheville, who has cerebral palsy, told his story during an April 25 event in downtown Raleigh for professionals and advocates involved with proposed reforms of  guardianship law that are moving through the General Assembly. 

He recounted being 18 and just transitioning from living with his mother. 

“They did not think that I was making good decisions,” Freeman said about the process to place him under the care of a guardian. “Then I come and I’m like, ‘What do you mean? What am I supposed to do?’”

A bill containing proposed reforms to several aspects of adult guardianship passed the state Senate unanimously on April 20 and headed to a House committee April 25. Its passage would mark the first substantive changes in decades in this area of law, with language aimed at improving rights of the person under guardianship, making sure they are fully informed about the process, and improving oversight by the offices of county clerks.

Under legal guardianship in North Carolina, a person can have near-total control of their life — over daily living and/or financial matters — turned over to another person, agency or business by order of a county clerk of court. It happens when the court finds that a person, called a respondent, or a “ward” in outdated terminology, does not have the capacity to make and communicate decisions about his or her welfare or money.

The reforms actually are “… the essence of what the disability rights movement is all about, which is choice and self-determination,” said Linda Kendall Fields, a longtime developer of these reforms and incoming director of UNC Cares, or the Center for Aging Research and Educational Services, at the UNC Chapel Hill. 

“It affects where you live, who you’re with, what you do, how your money is spent. It’s really core to personhood.”

‘It doesn’t get revisited’

In the fiscal year 2021-22, 5,786 people were under guardianship in North Carolina, according to a March presentation to legislators. Laws governing the practice would get a revamp partly as a result of a campaign that’s been pursued since 2015 by Rethinking Guardianship, a statewide effort funded by the North Carolina Council on Developmental Disabilities and carried out by UNC Cares at the School of Social Work at UNC Chapel Hill.

“There are some provisions that would allow people to make choices about what they want to happen,” said Heather Burkhardt, executive director of the North Carolina Coalition on Aging, which supports the bill. “So it’s not taking away all of their rights around these guardianships and making sure that people have opportunities to come out of guardianship. 

“Often what happens is that a lot of people will have a guardian, and it’s forever and it doesn’t get revisited — ever.” 

That’s nearly what happened for Freeman, who had his rights restored on Jan. 24 after spending a decade in the system. The ARC of North Carolina, the agency that took over his guardianship from a private provider, followed a practice that the proposed law would mandate. Its provisions would make sure that the respondent, or person under guardianship, is aware of a number of rights, some of which may only have appeared in rulings in earlier cases, Fields said.

“I never knew I could have a trial by jury,” Freeman said. “I never knew that I could ask for an appeal, or that we would go to court. And nobody would tell me these things.” 

A mandate for full information

Restoration of rights for people who can handle their own affairs can have significant benefits. A court put Sean Brady, 36, under guardianship when he was diagnosed with symptoms of autism at age 27. As a result, he had to ask his stepmother as guardian for permission for activities such as traveling out of town for business. 

In this 2019 photo, Linda Kendall Fields of the UNC-Chapel Hill Jordan Institute of Families, and Sean Brady, a student and employee at Alamance Community College at the time, talk over issues of guardianship at a Rethinking Guardianship summit. Staff Photograph: Thomas Goldsmith

With the help of Rethinking Guardianship, Brady had his full rights as an adult restored. Using a document certifying his status in situations like applying for college, he earned a two-year degree in horticultural and applied plant science. 

“I think I’m the first person in my whole family to ever have a college degree,” Brady said in a phone interview from his new home in West Virginia. “I’m looking at possibly going back to West Virginia University, to take it from an associate’s degree to a bachelor’s in business or something like that.”

Anyone can file a petition to have another person declared incapable of making and communicating decisions about their care and finances. With proposed new requirements in the bill, the petitioner has to provide several items of specific information.

“In the past, if the clerk found the respondent to be in need of guardianship, they had no recourse but to assign a guardian,” Fields said. “The petitioner must show that attempts have been made to support this person’s decisions through a less restrictive means first.”

Carol Kelly, who is active in guardianship causes in Orange County and nationally, spoke at the Raleigh event about the importance of this portion of the proposed reforms. Kelly got involved because of the experience of her mother, in California, who she said was the victim of financial exploitation in an unnecessary guardianship.

“The purpose of this legislation is to require that every avenue is looked at,” Kelly said. “Do you have your power of attorney in place? And could that person work with you? Or is there some other way of support so that you maintain your dignity, your personhood? To have that taken away could just be devastating.”

Avenues to passage

Advocates for changes in guardianship got a boost that can’t be quantified from the story of pop star Britney Spears’ harrowing fight to escape the guardianship of her father, Burkhardt said. Spears’ example showed up in legislative discussion. 

What about fees for guardians of the estate?

There’s at least one matter for potential reform that didn’t make it into the guardianship bill under consideration by the General Assembly. That’s the subject of payment to guardians of the estate, who ensure the proper treatment and preservation of a respondent’s financial holdings. 

“It has not risen to the level of broad consensus for reform,” said Linda Kindall Fields, director of Rethinking Guardianship. “It’s a nuanced and complex issue that will probably be visited again in the next pass at reform in the coming two years.”

Under North Carolina law, guardians of the estate are entitled to fees at a maximum of 5 percent of income and expenses of the person under guardianship, with discretion allowed to the clerk of superior court overseeing the process.

A respondent found incapable of looking after his own estate may have considerable assets, sometimes in the million-dollar range, and maximum fees in those cases can reach six figures during years of guardianship.

In 2007, media attention to this issue brought calls for changes in the fee structure from some legislators and officials. Others in the field said that guardians’ fees are fair given the detailed work needed to oversee and closely annotate the respondents’ affairs.

The road to legislation that could survive passage in a contentious North Carolina legislature also was smoothed by  the support and participation of the North Carolina Bar Association and the North Carolina Conference of Clerks of Superior Court, participants said. 

Fields said three main parts make up the bill next to be considered by the House:

  • A mandate to consider alternatives that carry the least restrictions for the lives of people facing potential guardianship. 
  • A need to make sure all parties are fully informed about relevant rights.
  • The ability of courts to monitor guardianships and call for hearings if needed. 

The Rethinking Guardianship organization plans to push for more reforms in future legislative sessions, Fields said. One will be revisions in what is considered archaic statute language, such as “incompetent” instead of “incapacitated” to describe a person who may benefit from guardianship. 

Statutes also use such outdated terms as “inebriety” and “senility.” 

The terms occur not just in specific laws governing guardianship, but also in other statutes that are referred to, so any such process would get complicated, Fields said. The legislature has undertaken such language reform in the past, as in a 2018 effort to revise words such as “lunatic” and “mentally retarded,” but not all of the terms have been eliminated.

New processes already spreading

Meanwhile, years of discussion about changes to guardianship have created waves that are being felt in county clerks’ offices across North Carolina, said Mark Kleinschmidt, clerk of Superior Court in Orange County.

“I hope that you understand that the conversations and the hearings are going on, and clerks’ offices around the state have changed already because of the work you’re doing,” Kleinschmidt said to officials and supporters of the legislation at the April 25 event. “One of my colleagues from a neighboring county, very close to mine, in the last six weeks, has dismissed two adjudication petitions. 

“And she called me both times and said, ‘Hey, Mark, I dismissed a petition today.’

“And I said, ‘Oh, wow, how did you get there?’

“She said, ‘Well, there were plenty of supports for this individual. And this person was not incompetent, and I dismissed the petition.’”

NC Health News editor Rose Hoban contributed reporting to this story.

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