Instinctively, we are somewhat geared to trust the government. The government and courts, especially in the United States and North Carolina, are set up to help us, right? Not necessarily in the case of guardianships in North Carolina. It is odd to think that in this day and time, there may still be court proceedings that have questionable constitutionality, but this article proposes and examines that the way guardianship hearings are conducted, especially for elderly adults, are unconstitutional on several grounds.
Guardianships in North Carolina are governed by N.C. General Statute Section 35A. A Guardianship hearing is one in which the competency of an individual is being questioned; if this person is found incompetent, a Guardian will be appointed to make the healthcare decisions, financial decisions, or both of that individual. Guardianship hearings in North Carolina are closed (or private) hearings. Only parties to the action and interested parties are allowed in the hearing. Parties to the action include the Petitioner, Respondent, and the Guardian Ad Litem (GAL). The Petitioner is the party that brought the action to pursue guardianship over another individual. The Respondent is the person for which guardianship is being sought. Finally, the GAL is an attorney appointed to both represent the Respondent and to be a fact finder and report to the court, make observations as to the competence of the Respondent, and make recommendations as to who should be appointed as the Guardian if the Respondent is found incompetent.
A Petitioner may seek Guardianship of the Person, which is guardianship over the healthcare and personal decisions of the Respondent. A Petitioner may also seek Guardianship of the Estate, which is guardianship over the financial matters of the Respondent. Additionally, a Petitioner may also seek General Guardianship, which grants guardianship over both the estate and personal matters of the Respondent.
Guardianship hearings in North Carolina are private, closed hearings that are not open to the public. For example, in most criminal trials, there is a public hearing that allows the public and press to observe and report. According to The National Constitution Center in a discussion of how the U, S, Supreme Court has interpreted and applied the 6th Amendment and particularly the right to a public hearing:
The Court has enforced the “public” aspect of the trial right much more strictly. Criminal proceedings may be closed to the public and the media only for “overriding” reasons, such as national security, public safety, or a victim’s serious privacy interests.
North Carolina Guardianship hearings, on the other hand, are not subject to such public oversite or public scrutiny. Logically, one could conclude that a closed court proceeding would require more constitutional safeguards to protect the rights of the Respondent; but logic, in this case, would be wrong. Because of their confidential nature, there are very few statistics kept regarding guardianship cases. Therefore, it is difficult to quantitatively define the percentage of people found incompetent when a guardianship petition is brought. As an attorney who practices in this area of law, I can tell you that almost every guardianship petition results in a finding of incompetence, and the GAL, rather than a hearings officer, is actually in charge of this outcome.
I compare guardianships to criminal court proceedings because both have the ability to strip someone of their freedoms. Subsequently, a criminal court proceeding has many constitutional safeguards and requirements protecting the rights of the accused, such as:
- The Due Process Clause under the 14th Amendment;
- The Equal Protection Clause under the 14th Amendment;
- Supervision of the trial by a judge who is an educated lawyer, trained in the rules of evidence and other critical areas that are crucial to conducting a fair and constitutional hearing;
- A jury of peers who will weigh the evidence and decide guilt or innocence. The judge merely decides the length of the sentence;
- A public trial, not a closed proceeding, to ensure transparency and accountability;
- If the defendant cannot afford private counsel, then a criminal defense attorney will be appointed as a zealous advocate for the accused;
- The defendant is required to be present at the trial;
- Medical evidence cannot simply be written on letterhead from a doctor with no right to cross examine your accuser (6th Amendment).
These safeguards are in place because the stakes are high: the accused is facing the loss of personal freedoms, life in prison, or even death.
To compare, in a Guardianship hearing, a GAL is appointed to investigate the situation, question all parties, and report to the court. They are in no way a zealous advocate for the Respondent. In fact, the duties of the GAL are deeply conflicted: how can one attorney both zealously represent the Respondent and his or her best interests, while simultaneously acting as the court’s independent investigator, reporting their perspective on whom should be appointed as the Guardian of the Respondent if (and when) the Respondent is found to be incompetent.
An assistant clerk is in charge of the hearing, not a judge who is an attorney. A clerk may have any level of education and experience, and is generally not an attorney and certainly not an elected judge. But, in practice, the assistant clerk is not in charge of the hearing, the GAL is. A clerk sides with the GAL and rubber stamps the GAL’s recommendation for Guardian the majority of the time. So, in reality, the GAL makes that decision, not the clerk/hearings officer.
Because of this relationship, these hearings are rigged in such a way that the Respondent is almost always found incompetent. The Respondent is simply walked through the process without a second thought—the Respondent doesn’t even have to be present. All rights and freedoms can be removed in this hearing, just like a person found guilty of a crime and facing life in prison, yet the guardianship hearing was not presided over by a judge and they weren’t even brought to trial. Even a convicted felon and facing life in prison may retain ownership and control over property, unlike the Respondent in a guardianship proceeding. They are often housed in a facility and chemically imprisoned for the rest of their lives. Is this equal protection under the laws? Can this be constitutional?
Guardianship hearings do afford an option for a jury trial as follows:
§ 35A-1110. Right to jury. The respondent has a right, upon request by him, his counsel, or his 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 his own motion. The jury shall be composed of 12 persons chosen from the county’s jury list in accordance with the provisions of Chapter 9 of the General Statutes. (1987, c. 550, s. 1.)
But how often are jury trials demanded in a North Carolina guardianship proceeding? Rarely ever. I would estimate less than 1 in 100 guardianship cases are tried in front of a jury. A jury trial may be requested by the Petitioner, Respondent, and/or the GAL as the parties to the action, or by the assistant clerk or hearings officer presiding over the hearing. Family members, unless they are the Petitioner, do not have standing to request a jury trial—only a party to the proceeding may make this request. If the Petitioner is Adult Protective Services (APS), a division of the Department of Social Services (DSS) in North Carolina counties under the supervision of the North Carolina Department of Health and Human Services (NCDHHS), then they are the adverse party to the Respondent. The APS attorney has no reason to ask for a jury trial, and often has a very close working relationship with the assistant clerk conducting the hearing. The assistant clerk may never have presided over a jury trial, as normally is the case; if they have, it would be very few cases and assistant clerks, again, are typically not trained or equipped to properly preside over a jury trial. The GAL rarely, if ever, requests a jury trial for the Respondent. This brings into question if GALs are actually acting as zealous advocates for the Respondents they are appointed to represent. How can a seasoned GAL work hundreds of guardianship case and never feel compelled to request a jury trial for their client? Would this fly in a criminal court? No, it would not. It is a clear indication of a “going through the motions” mentality and attitude that is pervasive in guardianship proceedings in North Carolina courtrooms.
The players are not fully to blame, however, as the setup of the proceedings weigh heavily towards a finding of incompetence. The players are very familiar with this process generally, and there is no player appointed as a zealous advocate for the “accused,” the Respondent, who stands to lose all rights and freedoms. With their dual role, the GAL cannot be a zealous advocate for the Respondent. The Respondent may not even be at the hearing. Who is in place to challenge the Petitioner or question the work of the GAL? No one. I have often questioned whether a GAL is even necessary in these proceedings. There is no GAL appointed to independently investigate in other types of court hearings, where the parties do a great job of litigating the issues from which the judge makes an informed decision. Certainly, there is no GAL appointed in criminal felony proceedings where the accused stands to lose freedoms for years. A GAL is not a zealous advocate for the Respondent like an attorney in a criminal proceeding. The GAL serves multiple roles leaving the Respondent without a true zealous advocate.
Does a guardianship hearing adhere to traditional rules of law and evidence? As previously discussed, an assistant clerk who is rarely an attorney, and certainly not an elected judge, is appointed to preside over the Guardianship hearing. Imagine if a judge presiding over a criminal trial with a defendant facing life in prison stepped aside and asked an assistant clerk to sit in his place to preside over the hearing. This would be unprecedented. Civil Rights advocates would be up in arms; criminal defense attorneys everywhere would turn their attention to this one trial where an assistant clerk presided over a hearing where the defendant was facing life in prison. The country simply would not stand for it. Well, this is the reality in a Guardianship hearing. The rules of law and evidence, which attorneys spend much of their law school and legal lives learning and refining, are thrown out the window as an assistant clerk unfamiliar with the rules, and certainly with their nuances, takes the helm to preside over a similar hearing with the highest stakes: the loss of all rights and freedoms.
What about an appeal, you may say? The case is appealable to Superior Court, but an appeal is rarely filed. The appeal for the competency part of the hearing is a de novo standard, meaning that there is a new trial on the issue of competency. However, for the portion of the hearing where a guardian is appointed, this is an “abuse of discretion” standard which is a very hard burden to overcome.
These cases are also ripe for ex parte communications, or communication that does not include all the parties with the presiding hearings officer or judge. This is strictly forbidden in the Rules of Professional Conduct, but these types of hearings lend themselves to communication between parties that all work for or are appointed by governmental parties, except for the family. Because the parties to the hearing often work closely together and see each other frequently, if there are no ex parte communications between the GAL, the assistant clerk, and the APS attorney, then there is certainly the appearance of impropriety stemming from the setup of the hearings and the frequent proximity of the parties. This can leave a private party or immediate family member who is not a party to the action feeling powerless, helpless and hopeless as they grasp for straws and a footing in a hearing that keeps them at an arm’s length decision over the fate of their loved one.
The institution of family is certainly the foundation for this country, and by in large the human race. Families and familial relationships should be exalted, revered and respected. In North Carolina Guardianship proceedings, families simply are not shown this respect, especially if APS is involved; at that point the family takes a back seat, and by “back seat” I mean literally a seat in the audience. The immediate family members remain as “interested parties,” but are only allowed to sit in the audience of this closed hearing. They are not sitting as the Petitioner, and they are not allowed to call witnesses, present evidence, or cross examine witnesses. The state and all other parties employed or appointed by it run the entire show. The family is essentially left out to be silent unless called upon. Why doesn’t the family have a “say so” or grounds as a party? Since when did the state become more important than family? It should not be. Family must be held in higher esteem than the state, or we will witness the demise of our state and nation, which was built upon individual rights, freedoms and family.
In a criminal court proceeding, it would be unprecedented to hold the hearing without the defendant being present for trial. An accused has a Sixth Amendment constitutional right to cross-examine accusers and examine evidence offered against him. In a Guardianship hearing, the Respondent does not have to be present for the hearing and can be found incompetent with merely the submission of a doctor’s note, leading to all rights stripped away from you.
Guardianships in North Carolina may present a case of civil rights violations. Federal law protects individuals from discrimination or harassment based on the following nine protected classes: sex, race, age, disability, color, creed, national origin, religion, or genetic information. Do the North Carolina Guardianship laws discriminate against individuals based on age? Guardianship cases in North Carolina certainly affect the elderly the most, and there is a disproportionate impact on them than other age groups. Therefore, there should be additional protections and safeguards to protect the elderly and their families in these closed and private proceedings.
Guardianship is widely overused and should only be granted if the court cannot find suitable alternatives. The court rarely looks for suitable alternatives, even though there are plenty of alternatives to a full guardianship, such as a limited guardianship, reviews, and assistants to help out the individual.
The hearings, the assistant clerk, and the players are not fully to blame. They are merely doing their best to play their role and abide by the law. The sad truth is that the assistant clerk generally does not want to preside over these hearings and knows they are not equipped to do so, yet the guardianship laws of North Carolina are crafted in a way that requires them to handle these cases. This is something that this attorney believes needs to change, and none too soon. With the aging Baby Boomer population or “Silver Tsunami,” these cases are going to happen more and more frequently and will require more of the courts time and attention. The elderly will be even more disproportionally affected than they are presently, creating more of a civil rights issue than what currently exist.
How can we change the laws? How can you help? Great questions. One way is for attorneys to keep challenging guardianship proceedings and the “quirky” rulings and backwards procedures that happen there on a daily basis. The attorney can fight hard for the family, and should do so without fear of reprisal from the assistant clerk, the GAL, or the Department of Social Services. These attorneys should appeal any erroneous ruling by an assistant clerk to be brought to light in front of a Superior Court judge. If the Superior Court judges don’t make the right call or give the issues the time and attention, the attorney should appeal that ruling to the North Carolina Court of Appeals. Light is the best disinfectant, and bringing light and attention to Guardianship hearings in North Carolina is one way to challenge and change them. Included in their appeals should be the civil rights and constitutional grounds that are frequently heard by the court of appeals, which will certainly bring much needed attention to these closed hearings. The elderly certainly deserve proper due process and equal protection under the laws of the United States and the State of North Carolina, the same as any other citizen of any age in other courtrooms. As for me, I will keep fighting and keep appealing and enduring the gasps and gawks of other players in this game who wonder, “what the hell is he doing?”
Elder Law Attorney
 The National Constitution Center website: https://constitutioncenter.org/interactive-constitution/amendments/amendment-vi