Right to counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Protected Person

Proceedings determining whether an indigent individual is incompetent, meaning that they do not have "sufficient capacity . . . to make or communicate important decisions concerning [their] person, family, or property," and, in the case of an adult, "to manage [their] own affairs,"  N.C. Gen. Stat. § 35A-1101(7), (8), give rise to representation.  N.C. Gen. Stat. § 7A-451(a)(13) speaks of "entitlement" to counsel in such proceedings, while N.C. Gen. Stat. § 35A-1107(a) adds, "The respondent is entitled to be represented by counsel of his own choice or by an appointed guardian ad litem. Upon filing of the petition, an attorney shall be appointed as guardian ad litem to represent the respondent unless the respondent retains his own counsel, in which event the guardian ad litem may be discharged."  If a guardian seeks sterilization of their ward, N.C. Gen. Stat. § 35A-1245(c) provides that “If the ward is unable to comprehend the nature of the proposed procedure and its consequences and is unable to provide an informed consent, the clerk shall appoint an attorney to represent the ward in accordance with rules adopted by the Office of Indigent Defense Services.”


At a hearing on a motion for restoration of a ward to competency, "the ward shall be entitled to be represented by counsel or guardian ad litem, and a guardian ad litem shall be 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. Gen. Stat. § 35A-1130(c).

Appointment of Counsel: categorical Qualified: yes