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Representing the Alleged Incompetent Adult: Ethical and Procedural Issues

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Date Published

November 18, 2020


Mecklenburg County Bar


Elder Law, Ethics


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A. Introduction.

B. What if an attorney is hired by an adult child of the Respondent in an incompetency proceeding to represent the elderly adult?
i. Who does the attorney represent?
ii. Who pays the lawyer’s fees?
iii. Who does the lawyer take direction from?
iv. What if the elderly adult has diminished capacity?

C. Procedural guidelines in guardianship proceeding;
i. Who has the right to call and examine witnesses and introduce evidence in a guardianship proceeding?
ii. Clerk of Court inherent authority to supervise the proceeding and determine who participates.
iii. Clerk of court authority to determine fees and costs
iv. Fee shifting provisions in the statute

D. Materials

NCGS § 35A-1107. Right to counsel or guardian ad litem.

NCGS § 35A-1116. Costs and fees.

NCGS § 35A-1112. Hearing on the petition; adjudication order.

Rules of Professional conduct, Client with Diminished Capacity, Rule 1.14, see also, 1.16, 1.17, and 2003 Formal Ethics Opinion 7

§ 35A-1107. Right to counsel or guardian ad litem.

(a) The respondent is entitled to be represented by counsel of his own choice or by an appointed guardian ad litem. Upon the filing of the petition, an attorney shall be appointed as guardian ad litem to represent the respondent unless the respondent retains his own counsel, in which event the guardian ad litem may be discharged. Appointment and discharge of an appointed guardian ad litem shall be in accordance with rules adopted by the Office of Indigent Defense Services.

(b) An attorney appointed as a guardian ad litem under this section shall represent the respondent until the petition is dismissed or until a guardian is appointed under Subchapter II of this Chapter. After being appointed, the guardian ad litem shall personally visit the respondent as soon as possible and shall make every reasonable effort to determine the respondent's wishes regarding the incompetency proceeding and any proposed guardianship. The guardian ad litem shall present to the clerk the respondent's express wishes at all relevant stages of the proceedings. The guardian ad litem also may make recommendations to the clerk concerning the respondent's best interests if those interests differ from the respondent's express wishes. Inappropriate cases, the guardian ad litem shall consider the possibility of a limited guardianship and shall make recommendations to the clerk concerning the rights, powers, and privileges that the respondent should retain under a limited guardianship. (1987, c. 550, s. 1; 2000-144, s. 33; 2003-236, s. 3.)

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Mark D. Gott
Henderson, Nystrom, Fletcher & Tydings, PLLC

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Program Titles and Supporting Materials

This program contains the following components:

Video Presentation
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