There has long been ambiguity in North Carolina about the consequences of appointing a guardian for a parent in an abuse, neglect, or dependency case. On its face, North Carolina General Statute 7B-1101.1(c) authorises the trial court to appoint a guardian for a parent where ". . .there is a reasonable basis to believe that the parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest." A district court judge, on the court's own motion or on motion from a party, must conduct a hearing, however brief, on whether such a reasonable basis exists to appoint a parent a guardian. Up until two and a half months ago, the judge's decision ended the inquiry: either a parent required assistance to act in their own interest or not, and if not, they were appointed a guardian who would assist the parent's legal counsel in trying the case.
Yet, despite the simplicity of the statute's wording and the minimal procedural requirements that the statute imposes, many who have been in such proceedings found them self asking troubling questions. For instance, what does it mean for a judge to find that it is reasonably likely that a parent is incompetent? Does this make them incompetent? If so, did the legislature create another process in addition to those contained in North Carolina General Statute Chapter 35A to determine competency? In addition, there were lingering questions about the interplay between G.S. 7B-1101.1 and G.S. 1A-1, Rule 17, which was the traditional civil procedure rule for appointment of a guardian in incompetency cases. With Rule 17, the guardian did more than just assist the attorney, they substituted as the party. Did G.S. 7B-1101.1 create a situation where the guardian was substituting for the party?
The Court of Appeals in its December 18, 2012 decision in In re P.D.R. has attempted to provide some clarity to some of these issues. For the most part, it has succeeded in providing some procedural and substantive guidance. Most notable from its holding is the admonition that a trial court, in conducting its initial hearing regarding the need for the appointment of a guardian, must now not only make a determination as to whether a guardian is reasonably necessary but must also determine whether the appointment is one of assistance or substitution. In the event of the former, the language of G.S. 7B-1101.1 governs and in consequence, the parent continues to maintain autonomy with regard to the scope and direction of the parent's representation. As the court of appeals has stated it, the parent suffers not from incompetence but from ". . . diminished capacity. . [and] may have some limitations that impair their ability to function." This is not so with regard to the later option where a court making a determination that an appointment is of substitution effectively strips the parent of their autonomy in the legal action. Appointments of substitution, according to the court of appeals, are governed by G.S. 1A-1, Rule 17. As such, a substitutive appointment is informed by the premise that an incompetent person does not have the capacity to make any decision with regard to the scope or direction of a legal proceeding. Accordingly, the party must be replaced by the guardian who then steps in to make necessary decisions on behalf of the party.
What this practically means now is that district court trial judges will have a little more work to do when confronted with parents who present with mental illness and impairment in its many forms. Moreover, guardians of substitution will be required to be at every hearing in the same way that a party would be necessary to enable to trial court to act in accordance with due process.Unanswered are those questions about where the frontier exists between a person who suffers from diminished capacity and the more significant and debilitating "incompetence." Those who deal with those issues in Clerk of Court special proceedings are well aware that such issues frequently require the consultation of multiple disciplines in order to gain any degree of understanding about the magnitude of a person's mental impairment.
It remains to be seen how deeply the district courts in North Carolina will go to satisfy the requirements of the North Carolina Court of Appeals through its decision in In re P.D.R. With dockets bursting at the seams and court time at a premium, it appears likely that patience will likely be a dear commodity among the trial judges. While this is no attempt at clairvoyance, it would be a good guess that the next appeal in this genre will ask the question as to what depth a trial court must proceed to satisfy its requirements under either G.S. 7B-1101.1 or 1A-1, Rule 17.
