by Chris Hilburn-Trenkle
Many advocates celebrated what they say is a significant achievement for autonomy and individual rights when North Carolina Gov. Roy Cooper signed Senate Bill 615 into law in late September.
Also known as the “Guardianship Rights Bill,” the law will take effect Jan. 1, 2024, and will give individuals affected by the guardianship system more agency over their lives by establishing that individuals are aware of their rights, using less restrictive alternatives to guardianship whenever possible, and increasing the courts’ ability to monitor and supervise existing guardianships.
“Through this law, basic constitutional rights are returning to people with disabilities and older adults sometimes placed under unnecessary or undue guardianship,” said UNC Center for Aging and Adult Research and Education Services (Cares) Director Linda Kendall-Fields. “Now they’ll know what their rights are, and others will have to show why a less restrictive option, like supported decision-making, can’t be used instead.”
Laying the groundwork
The formal push to rework the guardianship system began in 2015 and was aided by grants from the North Carolina Council on Developmental Disabilities and the work of the Cares program at the University of North Carolina at Chapel Hill School of Social Work on a large-scale collective impact initiative entitled Rethinking Guardianship NC.
Kendall-Fields was named facilitator of Rethinking Guardianship in January 2016 and immediately hit the ground running in her new role in pursuit of changing the guardianship system.
Clinical Professor Gary M. Nelson, who established UNC Cares in 1987, recruited Kendall-Fields for the position due to her passion for her work, her leadership skills and her ability to collaborate with those “who are different, whether the differences are grounded in their politics, race, gender, class or location.”
“Linda shares a deep lifelong passion and commitment to the well-being of individuals with disabilities, a commitment measured in supporting their right to govern their own lives and make decisions with the support of others to secure the highest level of happiness and well-being possible,” Nelson said.
Beginning in 2015, three separate teams were set up to help create the push for legislative change — an education and outreach team, a statutory writing team and a data and stories collection team.
From 2015–17 the data collection group curated statistics regarding guardianship and produced more than 25 guardianship stories. The stories came from individuals under guardianship or affected by one, judges who appointed a guardian, and attorneys involved in guardianship cases, putting the group in the midst of the legal and judicial system.
After stakeholders for the group proposed legislation that was not passed by the North Carolina General Assembly, Kendall-Fields and members of the Cares program regrouped, deciding to focus even more of their efforts on educating the public. They received additional funding and developed many materials, including an informed decision-making tool for the mental health system.
Following more bumps in the road, Kendall-Fields in September 2019 led a seven-person team to help write a draft that included justifications for changing the guardianship law. By May 2021 she had been connected to Catherine Wilson, an estate planning and fiduciary law attorney and the legislative committee chair of the North Carolina Bar Association. Wilson helped recruit other attorneys to refine the draft provided by Rethinking Guardianship NC and create a final product for the General Assembly.
In January 2023, the hard working statewide Rethinking Guardianship workgroup, led by UNC Cares, had that final product. Less than nine months later a bill was signed into law.
“On Senate Bill 615, Linda’s and Cares’ leadership resulted in multiple Senators from the Republican Party signing to Senate Bill 615 as its primary sponsors,” Nelson said. “Their support was essential to the passage of this legislation, legislation that will improve the lives of countless individuals and families, Republicans and Democrats, urban and rural as all share a commitment to the well-being of their families and their communities. Leading with respect for the other, reaching across the aisle, learning from our political and cultural perspectives is ‘how’ our state, its communities, and families rebuild civic institutions and democracy.”
Changes to the law
Effective under the new law, guardians will receive proper oversight to prevent abuse or exploitation of individuals and limit attorney fees if they are not benefiting the individual they are representing in the proper manner.
Meanwhile, the law raises the threshold for filing an incompetency petition, requiring that the petitioner submit a statement showing that less restrictive alternatives had been attempted before approaching adjudication. This inclusion protects individuals to ensure that all options were taken before appointing a guardian.
Less restrictive alternatives as stated by the law include allowing the individual to “manage his or her affairs,” “make or communicate important decisions concerning his or her person, property, and family that restricts fewer rights of the respondent,” “supported decision making,” and, “available technological assistance.”
“Guardianship will be used as a last resort. Less restrictive alternatives provide support but keep life decisions in the hands of the individual,” Kendall-Fields said.
If it is found that less restrictive alternatives were not sought before filing the petition, the court can determine that the individual is not incompetent and that there was no legitimacy for bringing the petition.
Private guardians, under the previous law, represented two-thirds of all guardians. Yet the only time they had a reporting requirement was on the day they were assigned as a guardian. The new law changes that requirement, allowing clerks of court to be proactive about any complaints and making it easier to remove a malevolent guardian, something that is crucial for protecting individuals.
“If no one is watching, people can be and sometimes have been vulnerable to bad actors in their lives,” Kendall-Fields said.
Next steps
With the guardianship law set to go into effect in January, Kendall-Fields stressed the importance of educating the public, an effort that was spearheaded for Rethinking Guardianship NC by Alison Climo, a community engagement specialist in aging for UNC Cares. Climo, Kendall-Fields and other members of their team are now working with the North Carolina Guardianship Association and through a mini-grant from the North Carolina Council on Developmental Disabilities to develop materials to further guide individuals, families and professionals on the new law and show how to effectively use less restrictive alternatives.
Moving forward, the group is hoping to change the terminology used in the guardianship system for 2025, eliminating phrases such as “incompetent” and “ward” to describe individuals, and reforming the Guardianship ad Litem (GAL) system to provide all individuals with the right to representation by an attorney.
“I’m very proud of how the Cares team has been developing its skills in leading collective impact systems change initiatives, and this has been a very rewarding outcome of eight years of bringing disparate voices together around a common vision,” Kendall-Fields said.
