Right to counsel

There seems to be a right to counsel for indigent respondents in involuntary protective services matters, at least in non-emergency situations. 

If a disabled adult in need of protective services has capacity, they must consent in order for the department to provide services. See N.C. Gen. Stat. § 108A-104(a); see also Id. at (c) (“If a disabled adult does not consent to the receipt of protective services, or if he withdraws his consent, the service shall not be provided.”).

But “[i]f the director [of the county department of social services] reasonably determines that a disabled adult is being abused, neglected, or exploited and lacks the capacity to consent to protective services, then the director may petition the district court for an order authorizing the provision of protective services.” N.C. Gen. Stat. § 108A-105(a). 

Paragraph (b) goes on to explain that the case shall be heard within 14 days, and the respondent “has the right to be present and represented by counsel at the hearing.” § 108A-105(b).  Although the language “the right to be represented by counsel” would not ordinarily create a right to appointed counsel, the public defense code seems to clarify that such adults do in fact have the right to appointed counsel if they are indigent. See N.C. Gen. Stat. § 7A-451(a)(11) [“(a) An indigent person is entitled to services of counsel in the following actions and proceedings: … (11) A proceeding for the provision of protective services according to Chapter 108A, Article 6 of the General Statutes. …”].

The protective services act does provide for the entry of an order authorizing the provision of services on an emergency basis though, including orders entered on an ex parte basis. See N.C. Stat. § 108A-106.  An emergency order may be sought if there is reasonable cause to believe the adult lacks the capacity to consent and needs services and “[n]o other person authorized by law or order to give consent for the person is available and willing to arrange for emergency services.” § 108A-106(a).

Though the section on emergency intervention does not mention a right to  counsel, see N.C. Stat. § 108A-106, an order entered on an emergency basis is temporary and must not last for more than 14 days. Id. at (b).  If services are needed for more then 14 days, the director must file a petition pursuant to Section 108A-105, and the adult’s right to counsel would presumably attach at that hearing. Id.  

Because it is not clear whether the adult’s right to counsel attaches in emergency matters, the right to counsel is classified as “qualified.”