North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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REPLY TO: Norma S. Harrell
Special Litigation
(919) 716-6900
FAX: (919) 716-6763

March 11, 2004

Malcolm Ray Hunter, Director Office of Indigent Defense Services 123 West Main Street, Suite 700 Durham, North Carolina 27701

Re: Advisory opinion: Appointment of guardians ad litem in incompetency proceedings

Dear Mr. Hunter:

We are writing in response to your inquiry concerning the authority to appoint guardians ad litem in incompetency proceedings. It is our understanding that the Office of Indigent Defense Services (“IDS”) contends that it has authority under N.C.G.S. § 35A-1107 to appoint guardians ad litem in incompetency proceedings. Pursuant to that authority, IDS has entered into contracts or proposes to enter into contracts for counsel or guardians ad litem in incompetency proceedings in Wake County. However, there has been a disagreement between IDS and the Clerk of Superior Court in Wake County about who has the authority to appoint guardians ad litem in that county. This office wrote to the Clerk of Court in Wake County inviting her input into the issue, but has received no response.

Under N.C.G.S. § 35A-1107, the respondent in a proceeding to determine incompetence is entitled to be represented by an appointed guardian ad litem, who must be an attorney, unless he or she has retained counsel. “Appointment and discharge of an appointed guardian ad litem shall be in accordance with rules adopted by the Office of Indigent Defense Services.” N.C.G.S. § 35A-1107(a). The Clerk of Court conducts the guardianship proceeding and, if necessary, appoints a guardian once the respondent has been adjudged incompetent. N.C.G.S. § 35A-1112. In some cases the Clerk of Court may appoint an interim guardian prior to final resolution of the proceedings. N.C.G.S. § 35A1114. Similarly, the Clerk of Court conducts proceedings concerning (possible) restoration to competence of a person previously adjudged incompetent. In such proceedings, the ward or person previously adjudged incompetent is entitled to a guardian ad litem “appointed in accordance with rules adopted by the Office of Indigent Defense Services if the ward is indigent and not represented by counsel.” N.C.G.S. § 35A-1130. IDS has adopted rules concerning the appointment of counsel, Malcolm Ray Hunter, Jr. March 11, 2004 Page 2

which would encompass appointment of guardians ad litem. In particular, IDS has adopted a rule which permits contracts for representation in appropriate instances. Rules of the Commission on Indigent Defense Services, Rule 1.5(f). Relying on Rule 1.5(f), you have entered into a contract by which representation as guardians ad litem would be provided in Wake County incompetency proceedings. The Clerk of Court, however, has not recognized the persons appointed through contract with you under the IDS rules and apparently has made her own guardian ad litem appointments.

Based on N.C.G.S. §§ 35A-1107 and 35A-1130, IDS has unambiguous authority to provide through its rules for appointments of guardians ad litem in incompetency proceedings. The current IDSrules allowing for providing counsel through contracts, as appropriate, appear more than adequate to encompass the decision of IDS to enter into contracts with particular individuals, firms or groups to provide representation as guardians ad litem in specific counties, and in particular in Wake County. No provision of Subchapter I of Chapter 35A of the General Statutes, governing “proceedings to determine incompetence,” authorizes the Clerk of Court to appoint guardians ad litem in such proceedings. Moreover, the authority of IDS to appoint counsel generally has been upheld against a challenge contending the exclusive authority to appoint counsel in North Carolina resided with the judiciary. Ivarsson v. Office of Indigent Defense Services, 156 N.C. App. 628, 577 S.E.2d 650 , disc. review denied, 357 N.C. 250, 582 S.E.2d 269 (2003). The reasoning of that case amply supports the validity of the appointment of guardians ad litem by IDS pursuant to Subchapter I of Chapter 35A of the General Statutes. Since there does not appear to be any statutory authority for the Clerk of Court to make such appointments, it seems that IDS has clear authority to do so despite the objections of the Clerk of Superior Court.

We hope this answers your inquiry. Please let us know if there are any questions or problems concerning this letter.

Sincerely,

Grayson G. Kelley Chief Deputy Attorney General

Norma S. Harrell Special Deputy Attorney General

cc: Honorable Janet I. Pueschel Dolly Whiteside