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Legal Issues in Incompetency and Adult Guardianship Proceedings in light of COVID‐19
- Hon. Michelle Ball, Johnston County Clerk of Superior Court
Timothy Heinle, UNC School of Government Meredith Smith, UNC School of Government April 15, 2020
Session Agenda
- 1. Quick Overview of Supreme Court Orders
- 2. Chief Justice’s April 2, 2020 Order
- Emergency Proceedings
- Remote Proceedings
- 3. Other Special Issues in Incompetency and
Guardianship Proceedings
- Service on the respondent
- Personal visits by GAL with the respondent
- Respondent’s attendance at the hearing
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April 2, 2020 Order Incompetency and Guardianship
April 2 Order, Directive 5: Examples of forms under oath or verified 1. Petition for Adjudication – AOC SP 200 2. Motion for Interim – AOC SP 198 3. Inventory for Guardianship – AOC E 510 4. Account – AOC E 506 5. Status Report – DHHS form *** DOES NOT APPLY TO WILLS (but would apply to affidavits in support i.e. AOC‐E‐300, AOC‐E‐301, and AOC‐E‐302.***
NEW ‐ April 13, 2020 Order
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Part II: April 2, 2020 Order April 2, 2020 Order: Directive #1
- “Proceedings” includes incompetency and adult
guardianship proceedings under G.S. Chapter 35A
- Does not impact ability to initiate/file a proceeding
(i.e. AOC SP‐200)
- Does not impact ability to file documents in those
matters i.e. status reports, inventories, accountings
- However, additional time to file documents due on or
after March 16th; given to close of business on June 1 under April 13 order
Exceptions to Directive #1
Directs proceedings must be scheduled/rescheduled for no sooner than June 1 unless one of four exceptions applies. Exceptions include:
- 1. The proceeding is for the purpose of obtaining
emergency relief, or
- 2. The proceeding will be conducted remotely.
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Exceptions to Directive #1
Proceedings must be scheduled/rescheduled for no sooner than June 1 unless an exception applies. Exceptions include:
- 1. The proceeding is for the purpose of obtaining
emergency relief, or
- 2. The proceeding will be conducted remotely.
Emergency Relief + 35A Proceedings
Proceedings under G.S. Chapter 35A for emergency relief include:
- 1. Interim Guardianship (G.S. 35A‐1114)
- 2. (Emergency) Motions in the Cause (G.S. 35A‐1207)
- 3. Emergency Removal (G.S. 35A‐1291)
‐ Per Directive #1, may be conducted prior to June 1st.
- Move hearings to larger courtroom, as
available
- Set up social distancing guidance in
the courtroom
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Available Pre‐Adjudication
Proceedings After Adjudication/ Appointment
- f a Guardian
- Motion in the Cause
- Removal
Emergency Relief + 35A Proceedings
Interim Guardian
A guardian, appointed prior to adjudication of incompetence and for a temporary period, for a person who requires immediate intervention to address conditions that constitute imminent or foreseeable risk of harm to the person's physical well‐being or to the person's estate. G.S. 35A‐1101(11)
Interim Guardianship
Who may seek appointment of Interim Guardian:
- Petitioner or GAL by verified motion filed at or
subsequent to filing petition
- Clerk on clerk’s own motion at the incompetency
hearing G.S. 35A‐1114(a); G.S. 35A‐1112(b1)
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Interim Guardianship
Grounds
- 1. Reasonable cause to believe respondent
incompetent and
- 2. Is or reasonably appears to be an imminent or
foreseeable risk of harm to the (a) respondent or (b) respondent’s estate that requires immediate intervention prior to the adjudication hearing G.S. 35A‐1114(a); G.S. 35A‐1112(b1)
Interim Guardianship
Order must be narrowly tailored to meet the emergency
- Interim guardian’s powers are limited and extend
- nly so far as necessary to meet the conditions
necessitating the appointment
- Powers are set out in clerk’s order appointing
interim (AOC‐SP‐900)
Interim Guardianship
Appointed for a temporary period
- Terminates at the earliest of
- Date in the clerk’s order
- 45 days from appointment, unless extended for good
cause for another 45 days*
- When a guardian appointed, or
- Petition for adjudication dismissed
* 90 days from today – July 14th
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(Emergency) Motion in the Cause
Any interested person may file a motion in the cause with the clerk….to request modification of the order appointing a guardian or guardians or consideration of any matter pertaining to the guardianship.
- The clerk must treat all requests, however labeled, as
motions in the cause.
- If an emergency exists regarding physical well‐being of
the ward or ward’s estate, clerk may enter appropriate ex parte order to address the emergency pending disposition of the matter at the hearing GS 35A‐1207
Emergency Removal
The clerk may
- Remove a guardian without hearing if the clerk
finds reasonable cause to believe that an emergency exists that threatens the physical well‐ being of the ward or constitutes a risk of substantial injury to the ward's estate.
- When letters are revoked, enter interlocutory
- rders the clerk finds necessary for the protection
- f the ward or the ward’s estate pending resolution
- f the controversy related to removal
G.S. 35A‐1291
Exceptions to Directive #1
Proceedings must be scheduled/rescheduled for no sooner than June 1 unless one of four exceptions
- applies. Includes:
- 1. The proceeding is for the purpose of obtaining
emergency relief, or
- 2. The proceeding will be conducted remotely.
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April 2, 2020 Order: Directive #3 April 2, 2020 Order: Directive #3
- Authorization to conduct remote proceedings
does not extend to proceedings that involve a jury i.e. incompetency or restoration proceeding involving a jury trial.
- Does not prevent officials from conducting in
person proceedings that are otherwise allowed under Directive #1 of the April 2, 2020 order (i.e. emergency proceedings)
April 2, 2020 Order: Directive #3
Judicial officials who conduct a remote proceeding pursuant to this directive must
- safeguard the constitutional rights of those
persons involved in the proceeding and
- preserve the integrity of the judicial process.
This specifically means…..
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April 2, 2020 Order, Directive #3
- 1. If the proceeding is required by law to be
recorded, then the remote proceeding must be recorded.
- 2. Each party to a remote proceeding must be able
to communicate fully and confidentially with his or her attorney if the party is represented by an attorney.
- 3. A remote proceeding may not be conducted
without the consent of each party.
Recording the Proceeding
Incompetency – appealed de novo pursuant to G.S. 1‐301.2 – does not specifically address recording Guardianship – appealed on the record pursuant to G.S. 1‐301.3; recorded addressed in subsection (f)
- All hearings and other matters shall be recorded by
an electronic recording device
- In the discretion of the clerk, or
- Upon the request by a party.
- If recordation is not made, the clerk shall submit a
summary of the evidence presented to the clerk to the superior court.
April 2, 2020 Order, Directive #3
- 1. If the proceeding is required by law to be
recorded, then the remote proceeding must be recorded.
- 2. Each party to a remote proceeding must be able
to communicate fully and confidentially with his or her attorney if the party is represented by an attorney.
- 3. A remote proceeding may not be conducted
without the consent of each party.
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April 2, 2020 Order, Directive #3
- 1. If the proceeding is required by law to be
recorded, then the remote proceeding must be recorded.
- 2. Each party to a remote proceeding must be able
to communicate fully and confidentially with his or her attorney if the party is represented by an attorney.
- 3. A remote proceeding may not be conducted
without the consent of each party.
Remote Proceedings + Chapter 35A
Two big issues
- 1. Who must consent – who is a party?
- 2. May the GAL give consent on the respondent’s
behalf?
Issue #1: Who Must Consent?
Directive states: “each party” Then raises the question of who is a party? ‐ Incompetency proceeding ‐ Guardianship proceeding ‐ Proceedings filed after adjudication and the appointment of a guardian related to the guardianship
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Who is a Party
Full incompetency and guardianship proceeding:
- 1. Petitioner
- 2. Respondent and Respondent’s counsel or GAL
- 3. Any applicant for guardianship
Refer to Blog Post: On the Civil Side, “You Have a Right to Appeal My Incompetency,” March 30, 2016
Who is a Party
Full incompetency and guardianship proceeding: Likely also includes others entitled to notice under G.S. 35A‐1109
- 1. Next of kin alleged in the petition (SP‐200)
- 2. Other persons designated to receive notice by the
clerk A person entitled to notice of the incompetency proceeding also has standing to appeal the incompetency
- rder as an interested party.
See In re Ward, 337 N.C. 443 (1994); In re Winstead, 189 N.C. App. 145 (2008).
Motion on Interim Guardianship
Motion must be served on
- 1. Petitioner
- 2. Respondent and Respondent’s Counsel or GAL
- 3. Other persons the clerk may designate
*Does not specifically reference next of kin. G.S. 35A‐1114(c1)
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Who is a Party
DSS files a petition (SP 200) on April 15 for adjudication of incompetency and appointment of a
- guardian. DSS also files a motion for interim
guardianship (SP 198). The respondent is an 85‐year
- ld man who is showing signs of dementia. In the
petition, DSS names the respondent’s wife and daughter as next of kin. The clerk appoints a GAL to represent the respondent. The respondent hires his
Who must consent to allow the proceeding to take place remotely?
Who is a Party
Full incompetency and guardianship hearing DSS files a petition (SP 200) on April 15 for adjudication of incompetency and appointment of a
- guardian. DSS also files a motion for interim
guardianship (SP 198). The respondent is an 85‐year
- ld man who is showing signs of dementia. In the
petition, DSS names the respondent’s wife and daughter as next of kin. The clerk appoints a GAL to represent the respondent. The respondent hires his
Who is a Party
Interim hearing DSS files a petition (SP 200) on April 15 for adjudication of incompetency and appointment of a
- guardian. DSS also files a motion for interim
guardianship (SP 198). The respondent is an 85‐year
- ld man who is showing signs of dementia. In the
petition, DSS names the respondent’s wife and daughter as next of kin. The clerk appoints a GAL to represent the respondent. The respondent hires his
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Who is a Party
Example ‐ after adjudication – emergency motion in the cause: Any interested person may file a motion in the cause…..
- If an emergency exists regarding physical well‐being of the ward
- r ward’s estate, clerk may enter appropriate ex parte order
pending disposition of the matter at a hearing.
- Likely that clerk could hold an ex parte emergency hearing
remotely on consent of the interested person who files the motion
- For full hearing on motion in the cause, would need consent of
each party to hold remotely (movant, guardian, GAL for ward, etc.). GS 35A‐1207
Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them?
Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them? A “Rule 17 GAL”: In most civil cases, a GAL may be appointed for an incompetent adult. G.S. 1A‐1, Rule 17(b)(1).
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Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them? A “Rule 17 GAL”: Does not need to be an attorney and does not act as the incompetent person’s
- attorney. See N.C. State Bar, Formal Ethics Op. 11
(2004).
Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them? A “Rule 17 GAL”: Substitutes their own judgment for that of the adult, and the adult no longer makes their
- wn decisions about the case. See In re P.D.R., 224
N.C. App. 460 (2012); See also In re J.A.A. & S.A.A., 175 N.C. App. 66 (2005).
Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them? A “Rule 17 GAL”:
- Does not have to be an attorney
- Is not the adult’s attorney
- Substitutes their judgment for that of the adult,
and makes case decisions for the adult
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Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them? A “Rule 17 GAL”: likely can consent to a remote proceeding on behalf of an adult.
Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them? What about a GAL in an incompetency and guardianship hearing? How is a Chapter 35A GAL different from a Rule 17 GAL?
Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them?
- Ch. 35A GAL: are “guardians appointed pursuant to
G.S. 1A‐1, Rule 17.” G.S. 35A‐1101(6).
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Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them?
- Ch. 35A GAL: Must be an attorney, and “shall
represent the respondent” and “make every effort to determine the respondent’s wishes regarding the incompetency proceeding. . . .” G.S. 35A‐1107.
Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them?
- Ch. 35A GAL: “[S]hall present to the clerk the
respondent’s express wishes at all relevant stages of the proceedings” and “may make recommendations to the clerk concerning the respondent’s best interests if those interests differ from the respondent’s express wishes.” G.S. 35A‐1107.
Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them?
- Ch. 35A GAL:
- Must be an attorney
- Serves as the Respondent’s attorney unless they
have counsel
- Expresses the Respondent’s wishes to the court
and the GAL’s recommendations regarding the Respondent’s best interests when they differ
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Issue #2: GAL Consent
Does a Respondent who appears to lack the capacity to consent need to consent to a remote proceeding,
- r can a GAL consent for them?
It may depend on whether consenting to a remote proceeding classifies as a substantive legal right or if it is a decision regarding the matter of legal representation.
Issue #2: GAL Consent
Does a Respondent who appears to lack the capacity to consent need to consent to a remote proceeding,
- r can a GAL consent for them?
Nothing in Rule 17 or Chapter 35A authorizes an attorney serving as GAL in an incompetency proceeding to settle issues involving substantive legal rights for a Respondent.
Issue #2: GAL Consent
Does a Respondent who appears to lack the capacity to consent need to consent to a remote proceeding,
- r can a GAL consent for them?
When a lawyer determines their client is unable to make decisions regarding legal representation, the lawyer can act how they reasonably believe the client would if the client had the capacity to. See Restatement (Third) of the Law Governing Lawyers.
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Issue #2: GAL Consent
Does a Respondent who appears to lack the capacity to consent need to consent to a remote proceeding,
- r can a GAL consent for them?
Is consenting to a remote proceeding more like a substantive legal right, or more like a matter of legal representation?
Issue #2: GAL Consent
Does a Respondent who appears to lack the capacity to consent need to consent to a remote proceeding,
- r can a GAL consent for them?
I think it is more likely a substantive legal right, and I am reluctant to say that a GAL could consent to a remote incompetency hearing on behalf of a respondent who lacks the capacity to consent.
Issue #2: GAL Consent
Can a GAL consent to a remote proceeding on behalf
- f a Respondent who expresses opposition to a
remote proceeding? The answer here is more clearly no.
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Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them? Hypothetical #1: A Chapter 35A Petition for Adjudication of Incompetence and Appointment of a Guardian is filed April 15th. The hearing is set for May 4th, and the petitioner wants to hold the hearing remotely.
Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them? Hypothetical #1: A Chapter 35A Petition for Adjudication of Incompetence and Appointment of a Guardian is filed April 15th. The hearing is set for May 4th, and the petitioner wants to hold the hearing remotely. If the Respondent appears to lack capacity to consent to remote proceedings, can the GAL consent for them?
Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them? Hypothetical #1: A Chapter 35A Petition for Adjudication of Incompetence and Appointment of a Guardian is filed April 15th. The hearing is set for May 4th, and the petitioner wants to hold the hearing remotely. If the Respondent appears to have capacity to consent to remote proceedings, and does consent, what does the GAL do?
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Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them? Hypothetical #1: A Chapter 35A Petition for Adjudication of Incompetence and Appointment of a Guardian is filed April 15th. The hearing is set for May 4th, and the petitioner wants to hold the hearing remotely. If the Respondent opposes the remote hearing, can the GAL consent for them?
Issue #2: GAL Consent
Does a Respondent have to consent to a remote proceeding, or can a GAL consent for them? Unlikely a 35A GAL can consent on behalf of a Respondent. But! Possible Exception for Wards: What about for a hearing that takes place after the adjudication of incompetence? Can a GAL consent on behalf of the Ward to a remote hearing?
Issue #2: GAL Consent
Does a Ward have to consent to a remote proceeding, or can a GAL consent for them? Post‐adjudication of incompetence, the Ward no longer makes important legal decisions.
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Issue #2: GAL Consent
Does a Ward have to consent to a remote proceeding, or can a GAL consent for them? Post‐adjudication of incompetence, the Ward no longer makes important legal decisions. That would presumably include the decision about whether to consent to a remote hearing.
Issue #2: GAL Consent
Does a Ward have to consent to a remote proceeding, or can a GAL consent for them? For a post‐adjudication of incompetence proceeding, such as a petition to remove the guardian, a GAL would be appointed to represent the Ward’s
- interests. The parties would be the guardian, the
GAL, and the petitioner. The GAL would stand in substitution of the Ward and can consent to a remote proceeding on their behalf.
Issue #2: GAL Consent
Does a Ward have to consent to a remote proceeding, or can a GAL consent for them? Hypothetical #2: A Respondent was adjudicated incompetent in 2019 and was appointed a guardian
- f the person. He is now considered a Ward. The
Ward’s neighbor, an interested person, files a Motion in the Cause with concerns about the Ward’s care. The hearing is set for May 4th, and the Movant (the neighbor) and the Guardian of the Person consent to hold the hearing remotely.
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Issue #2: GAL Consent
Does a Ward have to consent to a remote proceeding, or can a GAL consent for them? Hypothetical #2: A Respondent was adjudicated incompetent in 2019 and was appointed a guardian of the person. He is now considered a Ward. The Ward’s neighbor, an interested person, files a Motion in the Cause on April 15th with concerns about the Ward’s
- treatment. The hearing is set for May 4th, and the
Movant (the neighbor) and the Guardian of the Person consent to hold the hearing remotely. Can the Ward consent to the Motion in the Cause hearing being held remotely?
Issue #2: GAL Consent
Summary
- Prior to the adjudication of incompetence, a
Chapter 35A GAL most likely cannot consent to a remote proceeding on behalf of the Respondent. If the Respondent appears to have capacity to consent to the proceeding, the Respondent can consent.
Issue #2: GAL Consent
Summary
- Prior to the adjudication of incompetence, a
Chapter 35A GAL most likely cannot consent to a remote proceeding on behalf of the Respondent. If the Respondent appears to have capacity to consent to the proceeding, the Respondent can consent.
- Post‐adjudication of incompetence hearings, such
as motions in the cause, likely require a GAL to be appointed to determine, in part, whether to consent to a remote hearing on behalf of a Ward.
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Part III: Other COVID‐19 Issues
Respondent resides in a long‐term care or other facility that is restricting visitors due to COVID‐19.
CDC Guidance, as of April 13 NC DHHS Guidance, as of April 13
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SLIDE 24 24 Long Term Care Facility, as of April 13
Other COVID‐19 Issues
Three key issues:
- 1. Personal service on the respondent, G.S. 35A‐1109
- 2. GAL shall personally visit the respondent, G.S.
35A‐1107
- 3. Respondent’s attendance at the hearing
Issue #1: Personal Service on the Respondent
Petition and application are filed (AOC SP 200) Clerk must issue notice of hearing within 5 days (AOC SP 201) Copies of the petition and initial notice of hearing shall be personally served on the respondent. G.S. 35A‐1109
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Question
Sheriff attempts personal service on a respondent who is a resident of a long‐term care facility. The facility will not let the sheriff enter. The sheriff leaves a copy of the petition and notice of hearing with the facility security who says they will deliver the copies to the respondent. Is this proper service?
Question
Respondent not at hearing. GAL appears and states GAL had a video call with the
- respondent. The respondent authorized GAL to
waive service as her counsel. Is this proper service?
Question
Respondent’s counsel or guardian ad litem may not waive personal service on the respondent. NC Clerk of Superior Court Procedures Manual,
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Question
Sheriff attempts personal service on a respondent who is a resident of a long‐term care facility. The facility will not let the sheriff enter. The sheriff returns the copies of the petition and notice of hearing to the clerk unexecuted. May the hearing go forward?
Issue #2: GAL Personal Visit
On April 6, the NC State Bar released Professional Responsibility in a Pandemic, stressing the need for lawyers to continue to meet their ethical responsibilities including diligence, professionalism, confidentiality, and communication, in representing clients.
GAL Personal Visit with Respondent
GALs in incompetency proceedings “shall personally visit the respondent as soon as possible” after being
- appointed. G.S. 35A‐1107(b).
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SLIDE 27 27 GAL Personal Visit with Respondent
When a GAL is denied access to a Respondent because of COVID‐19 restrictions, the GAL will need to consider what steps to take.
GAL Personal Visit with Respondent
Depending on the facts, a GAL may want to
- Arrange to meet outside but on the premises if it
can be done safely and while maintaining 6 foot+ distances (i.e. front porch of a group home)
GAL Personal Visit with Respondent
Depending on the facts, a GAL may want to
- Meet outside on facility premises
- Remote meeting with the Respondent
- Prefer video communication over audio only
- Telephone is better than no communication
- Privacy concerns with remote communication
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SLIDE 28 28 GAL Personal Visit with Respondent
The NC Bar’s April 6 piece, Professional Responsibility in a Pandemic, includes a discussion on Video
- Conferences. Of particular relevance to GAL
Attorneys: “A video conference can be an effective tool to speak with a new client about potential representation, but may not be sufficient if attempting to determine whether a client has capacity to make decisions about his or her affairs. Such situations will need to be assessed on a case‐by‐case basis by the lawyer exercising his or her professional judgment.”
GAL Personal Visit with Respondent
Depending on the facts, a GAL may want to
- Meet outside on facility premises
- Remote meeting with the Respondent
- File a motion, asking the clerk to review the access
issue; and
- Issue a subpoena to the hearing on the motion to
facility staff.
GAL Personal Visit with Respondent
Depending on the facts, a GAL may want to
- Meet outside on facility premises
- Remote meeting with the Respondent
- File a motion and issue a subpoena
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SLIDE 29 29 GAL Personal Visit with Respondent
If the GAL is unable to meet with the Respondent, or meets remotely but finds it inadequate, what can the GAL do?
GAL Personal Visit with Respondent
If the GAL is unable to meet with the Respondent, or meets remotely but finds it inadequate, what can the GAL do?
- If the GAL feels there is not an urgent need to move
forward with the hearing now, they could object to holding the hearing at this time and ask that it be continued for good cause until after June 1.
Respondent’s Facility on Lockdown
If the GAL is unable to meet with the Respondent, or meets remotely but finds it inadequate, what can the GAL do?
- The GAL may ask the Clerk to consider interim
guardianship if there is sufficient evidence of an emergency and need for interim guardianship, and ask that the full guardianship hearing be continued until after the restrictions are lifted and the GAL has the ability to meet with the client.
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SLIDE 30 30 GAL Personal Visit with Respondent
Striking a Balance Between the GALs Role of Presenting the Respondent’s Express Wishes to the Clerk and Making Recommendations About the Respondent’s Best Interests
Issue #3: Respondent Attend the Hearing
Scenario: Respondent lives in a facility which has a policy that any resident who leaves during lockdown cannot return. The facility is also not allowing
- visitors. The Respondent wants to attend the
hearing.
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