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By Thomas Goldsmith

As part of his work as a groundskeeper at Alamance Community College, Sean Brady has had the chance to travel as far away as Utah and Las Vegas for trade conferences.

But until 18 months ago, Brady, 34, had to ask his stepmother for permission to travel, because between 2014 and 2017 she had been given responsibility for him under North Carolina’s adult guardianship statutes. He’s one of a small minority of people subject to guardianship in North Carolina to have his rights restored.

“Now we don’t have to chase down my father’s wife to get permission to go on these trips,” Brady, also a horticulture student at the community college, said Feb. 25 during a Raleigh summit meeting on adult guardianship.

The group Rethinking Guardianship has been working since 2015 on ideas for changing the North Carolina laws and practice governing the removal of a person’s right to make life decisions. If a person is found to lack the ability to make and communicate key decisions, a North Carolina county clerk of court can name someone to look after his or her affairs.

Related: Check out our three-part series on guardianship from 2017.
To read the final Rethinking Guardianship report, click here

 

The working group has an active legislative subgroup looking at potential changes to be proposed to the General Assembly, perhaps as early as this month. Presenter and member Linda Kendall Fields, from the UNC-Chapel Hill Jordan Institute for Families, said recommended changes include:

  • Using the least restrictive possible setting for the person,
  • A requirement that alternatives are considered before guardianship,
  • Making sure people know they can have their own lawyers, and
  • A process for regular review rather than creating “forever guardianship.”

Words matter

The group also recommends replacing the current law’s outmoded terms, such as “ward” and “incompetent,” to describe people subject to guardianship.

“I think they have kind of a meaning today that has changed from what it was in 1987,” said Raj Premakumar, assistant attorney general at the state Department of Justice. “Using those terms can be dehumanizing.”

Petitions and Declarations of Incompetence: NC State Fiscal Years 2011–2017
For the past 7 years, an average of 4,584 petitions per year have been filed to have adults declared “incompetent” by the courts. Of these, an average of 3,629 (79%) reach the hearing stage and are declared incompetent. Chart courtesy: UNC Chapel Hill, Jordan Institute for Families

A Rethinking Guardianship report suggests using “people-first” terminology such as “person under guardianship” for “ward” and “limited capacity” for “incompetence.”

“Language matters because it shapes the way that we think,” said summit speaker Erica Wood, who coordinates guardianship programs nationally at the American Bar Association Commission on Law and Aging. “Under the Uniform Law, they suggest using ‘adults subject to guardianship’ because ‘under’ was thought to have negative connotations.”

Related: Last year, North Carolina changed many statutes to put “people first.”
 
Overall, the suggestions are in line with the Uniform Guardianship Conservatorship and Other Protective Arrangements Act, model legislation developed by the nonprofit Uniform Law Commission and approved by the American Bar Association in 2018.

“She didn’t reveal”

About 5,000 people in North Carolina have appointed public guardians, some 85 percent of them with intellectual or other developmental disability and/or mental illness, according to the NC Council on Developmental Disabilities. The Rethinking Guardianship group’s approaches — such as increased oversight and finding housing in alternative settings — could help in some of the fraught cases that attendees heard about at the recent summit.

“The son was turning 18, the mother received guardianship,” Kim Sigmon, Catawba County clerk of court, said of a case in her Graham office. “Then there was a motion to modify guardianship; the reason was the mother was going to prison. She had a felony trafficking in drugs charge in another state that had been pending.

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“She didn’t reveal any of that.”

After the Raleigh event, Brady said he had had a guardian appointed because he had been diagnosed as having symptoms of autism. Eventually tiring of his guardian’s oversight, Brady encountered people at Rethinking Guardianship and hired a lawyer. His restoration, as the process is called, put him among the 3 percent of North Carolinians who have successfully petitioned a court to be released.

Let’s work together

Brady’s story also reflects the principles of supported decision making, in which a person can ask for help with finances, health care and daily living, without the formality of a court appointment. That’s according to a summary by Lifetime Connections, part of the statewide nonprofit First in Families.

In Brady’s case, the court felt comfortable restoring his rights because he had support in keeping track of his finances and other key areas, UNC’s Fields said.

“Henry Ford didn’t build the automobile by himself,” Brady said.

Rethinking Guardianship is a project of the NC Council on Developmental Disabilities, the NC Division of Aging and Adult Services and the UNC-CH School of Social Work’s Jordan Institute for Families.

Thomas Goldsmith

Thomas Goldsmith worked in daily newspapers for 33 years before joining North Carolina Health News. Goldsmith is a native Tar Heel who attended the UNC-Chapel Hill, and worked at newspapers in Tennessee...

4 replies on “Adult guardianship group to propose changes in law, practice to NCGA”

  1. Too little too late for one of my clients. A suicidal person, 60 yrs old, w one late in life mental hospital commitment by a county
    DSS, the company holding the guardianship refused to allow the court to even consider a petition to have the guardianship relaxed a bit so that independent living was a possibility as had been worked up by the mental health professionals. Disability Rights NC refused to take on the case.

    The client rots in a family care home and the guardianship company assumably collects money as does the family care home, from Medicaid.

    Worst of all, the client has lost any ability to live independently. This was a human whom worked many years quite competently. The mental health professionals have no ability to assist clients who hve lost their own guardianship.

  2. An area clearly in need of reform. Thanks Tommy, for your coverage. Check out the Uniform Law and recent Senate report. Yes, reforms are too late for some, but we hope to make a difference for others, improving quality of life, respecting rights, and dignity.
    Thanks to all for your support

  3. Rethinking Guardianship has been working for four years and has not proffered any meaningful improvements in adult guardianship adjudication or oversight for vulnerable adults in the state. The reforms they are promoting are akin to rearranging the deck chairs on the Titanic. Adopting UGCOPPA only means more of the same in a state who’s guardianship program is fully dysfunctional and self serving to the North Carolina Department of Social Services, Bar and Guardianship Association.

    1. Based on years of advocacy and activism well documented facts are in total agreement with previous assessment by Rick Black. Only addition is NC Disability Rights inclusion in self-serving interest blocking any meaningful change in the way NC DHHS does “business” with group homes, providers and all other profiteers off of NC legalized human trafficking industry.

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