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2004 North Carolina Attorney General Reports and Opinions 1 (2004)

handle is hein.sag/sagnc0041 and id is 1 raw text is: 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. § 3 5A- 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-1 112. In some cases the Clerk of Court may appoint an interim guardian prior to final resolution of the proceedings. N.C.G.S. § 35A- 1114. 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-1 130. IDS has adopted rules concerning the appointment of counsel,

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