When a NC incompetency proceeding starts and the respondent needs a court-appointed lawyer to serve as guardian ad litem, who has the authority to make that appointment, the Clerk of Superior Court or the state's Indigent Defense Services?

Plain-English summary

NC's Office of Indigent Defense Services (IDS) was created in 2000 as the centralized agency responsible for delivering legal representation to indigent defendants and respondents in NC courts. Among its responsibilities: appointing guardians ad litem (GALs) in proceedings to determine whether someone is incompetent.

In incompetency proceedings under Chapter 35A, the respondent (the person whose competence is in question) is entitled to a court-appointed lawyer who serves as both attorney and GAL. The statute (§ 35A-1107) says the appointment and discharge of that GAL "shall be in accordance with rules adopted by the Office of Indigent Defense Services."

IDS adopted Rule 1.5(f), which permits IDS to enter into contracts with attorneys, firms, or groups for representation services in specific counties. Using that rule, IDS contracted with a Wake County firm or attorney group to provide GAL services in incompetency proceedings.

The Wake County Clerk of Superior Court refused to recognize the IDS appointees and made her own GAL appointments instead. The county Clerks of Superior Court do play a central role in incompetency proceedings under § 35A-1112 (conducting the guardianship proceeding) and § 35A-1114 (appointing interim guardians once an adjudication has occurred), so the question was real: does the Clerk also have GAL-appointment authority?

The AG said no. The statutes give IDS unambiguous authority over GAL appointments. § 35A-1107 ("appointment and discharge of an appointed guardian ad litem shall be in accordance with rules adopted by [IDS]") is dispositive. Subchapter I of Chapter 35A does not authorize the Clerk to make GAL appointments anywhere. The Clerk's appointments are unauthorized.

The opinion also addresses a constitutional argument. Some have argued that the judiciary has exclusive authority to appoint counsel in NC. That argument was rejected in Ivarsson v. Office of Indigent Defense Services, 156 N.C. App. 628 (2003) (review denied), which upheld IDS's appointment authority. The reasoning in Ivarsson applies equally to GAL appointments in incompetency cases.

Signed by Chief Deputy AG Grayson Kelley and Special Deputy AG Norma Harrell.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Office of Indigent Defense Services and Chapter 35A have both been amended since 2004. The IDS rules have been revised multiple times. Anyone applying this opinion to a current proceeding should pull the current rules of IDS, the current text of § 35A-1107, and check whether IDS has standing contracts in the specific county.

Common questions

Q: What is a guardian ad litem (GAL) in an incompetency proceeding?
A: A court-appointed lawyer who represents the respondent (the person alleged to be incompetent) during the proceeding to determine whether they should be adjudged incompetent. The GAL must be an attorney under § 35A-1107(a).

Q: How is the GAL different from a guardian?
A: The GAL represents the respondent during the proceeding only. If the respondent is found incompetent, the Clerk separately appoints a guardian under § 35A-1112 to make decisions for the ward going forward. Those are different roles.

Q: Why does the Clerk think they have appointment authority?
A: The Clerk of Superior Court conducts incompetency proceedings under § 35A-1112 and appoints guardians once an incompetency adjudication is made. The Clerk's central role in the proceeding made it intuitive (but legally incorrect) to read appointment authority for GALs into the Clerk's role as well.

Q: Can IDS use contract attorneys for GAL services?
A: Yes. IDS Rule 1.5(f) authorizes contracts for representation services. A county-specific contract for GAL services in incompetency cases falls within that rule.

Q: What about restoration-of-competence proceedings?
A: § 35A-1130 uses parallel language: GAL appointments in those proceedings are also "in accordance with rules adopted by [IDS]." Same answer as for the original incompetency proceeding.

Q: What if IDS has no contract in a particular county?
A: IDS's rules also provide for individual case-by-case appointments. The contract-based system is one mechanism; individual appointments under IDS rules are another. In either case, IDS controls the appointment, not the Clerk.

Background and statutory framework

NC restructured its indigent defense system with the Indigent Defense Services Act of 2000. Before then, judges and clerks made appointment-of-counsel decisions case by case, and the system was inconsistent across counties. The Act created IDS as a centralized agency to develop standards, allocate funding, and oversee appointments.

IDS's authority extends across the range of indigent-representation contexts: criminal defense, juvenile court, capital post-conviction, civil commitment, abuse-and-neglect proceedings, and incompetency proceedings. In each context, the underlying statute typically references IDS rules as the framework for appointing counsel.

The Wake County dispute illustrates the kind of friction that arose during the IDS rollout. Clerks of court had historically made appointments; the transition to an IDS-controlled system required them to step back. The AG opinion served as authoritative guidance for the conflict.

Ivarsson is the leading case on IDS's appointment authority. The plaintiff there argued that the NC Constitution gave the judiciary exclusive authority to appoint counsel. The Court of Appeals rejected that argument, holding that IDS's statutory appointment authority is constitutionally valid. The Supreme Court denied review, leaving the Court of Appeals decision as controlling law. The AG's reliance on Ivarsson is straightforward: if the judiciary doesn't have exclusive appointment authority over criminal defense counsel, it doesn't have exclusive appointment authority over incompetency GALs either.

Citations

• N.C.G.S. § 35A-1107 (guardian ad litem in incompetency proceedings)
• N.C.G.S. § 35A-1112 (clerk's role in guardianship proceeding)
• N.C.G.S. § 35A-1114 (interim guardian appointment)
• N.C.G.S. § 35A-1130 (restoration-to-competence proceedings)
• Rules of the Commission on Indigent Defense Services, Rule 1.5(f) (contracts for representation)
• 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)

Source

• Landing page: https://ncdoj.gov/opinions/appointment-of-guardians-ad-litem-in-incompetency-proceedings/

Original opinion text

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. § 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-1130. IDS has adopted rules concerning the appointment of counsel, 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 IDS rules 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