[Editor’s Note: This is the second of two posts related to North Carolina’s COVID-19 emergency legislation. For information regarding emergency witnessing and notarization requirements, please see the previous post.]

The current COVID-19 public health crisis has presented numerous novel issues to elder and special needs law attorneys—particularly in the area of guardianships. While many legal proceedings can be put on hold for several months, guardianships are of a particularly time-sensitive nature in most instances. This post is intended to provide some statutory updates and include some reminders and suggestions for navigating guardianship matters during COVID-19.

Service Requirements. On May 4, 2020, Governor Cooper signed Session Law 2020-3 into law. This new legislation addresses numerous time-sensitive matters impacted by COVID-19, including issues impacting guardianships in North Carolina.

Section 4.11(a) adds the following language to N.C.G.S. §35A-1109 regarding service of the initial petition and notice of hearing:

“(b) In the event that personal service is not possible because the respondent resides in a facility that restricts visitors due to a public health emergency, the respondent may be served by the sheriff leaving copies of the petition and initial notice of hearing at the facility with a person employed by the facility who is apparently in charge of the office or who has apparent authority to receive documents intended for residents. The facility employee shall, as soon as practicable, present the copies to the respondent. Proof of service on the respondent shall be by return of service filed with the clerk showing the respondent was personally served or copies were left with the facility as described in this subsection.”

This addition to the manner of service will immediately allow for personal service to be completed in communal settings. If filing a new guardianship matter for a respondent living in a communal setting, review the return of service from the sheriff prior to the hearing to verify that the return of service includes any relevant information about the manner of personal service. Please note that this manner of service is set to expire on August 1, 2020.

Emergency Motions to Modify, Removals & Hearings. Another concern that has arisen is how motions to modify existing guardianships should be addressed. The first version of the North Carolina Supreme Court emergency directives concerning court operations provided that hearings could only be held remotely if all parties provided consent. However, on May 1, 2020, the Supreme Court entered a revised order (see Emergency Directive 3) that permits remote hearings without unanimous consent of the parties. A party may, for good cause, object to the use of remote audio and video transmissions.

In a motion to modify, generally the person under guardianship, the guardian, and the movant (if different than the guardian) are the parties to the action. However, some North Carolina case law indicates that interested next of kin and persons might also have certain rights to participate in a guardianship proceeding under Article 35A. Because of this, there may be variation among the counties as to how clerks interpret the North Carolina Supreme Court’s guidance on who may object (for good cause) to remote hearings in a guardianship context.

For that reason, it is important not to forget about the provisions of N.C.G.S. §35A-1207(d), which permit the clerk to enter an appropriate ex parte order “[i]f the clerk finds reasonable cause to believe that an emergency exists that threatens the physical well-being of the ward or constitutes a risk of substantial injury to the ward’s estate . . .” Similarly, if a guardian’s actions warrant removal and constitute the same risks provided above, N.C.G.S. §35A-1291 permits the clerk to remove a guardian without hearing and issue interlocutory orders and decrees.

In addition, remain mindful of the exceptions provided in the emergency directives if a hearing must be held but cannot be held remotely. Emergency Directive 1 provides that a hearing may be held prior to June 1, 2020, if “the proceeding is for the purpose of obtaining emergency relief.” In addition, even if the situation did not clearly meet the definition of an “emergency,” a hearing may be held if “the senior resident superior court judge . . . determines that the proceeding can be conducted under conditions that protect the health and safety of all participants.” Some clerks have already permitted in-person interim guardianship hearings when a remote hearing was not possible.

When remote hearings are held, the technology used is WebEx. Though I personally have not participated in a remote hearing yet, I understand that the WebEx meetings do allow for a person to join audio of the hearing by phone if someone has issues connecting to audio through the typical video connection. I understand that WebEx also allows for “side bars” with counsel where counsel and his or her client could meet separately and allows for the hearing to be recorded.

Meeting with Respondents as Guardian ad Litem. N.C.G.S. §35A-1107(b) requires an attorney appointed as a guardian ad litem to “personally visit the respondent as soon as possible . . .” Social distancing guidelines, guidance and regulations from state and federal authorities, and facility rules for communal settings may make an in-person meeting difficult or impossible. Generally, the only exceptions provided to such restrictions are for those providing health care or in an end-of-life situation.

Some alternatives could be to meet outside using proper personal protective equipment and social distancing measures (e.g. on the front porch of a skilled nursing facility), remotely by video, or (depending on how in the weeds you are willing to get . . . literally) by phone for voice communication while standing on the other side of an exterior window from the respondent. Do be mindful of privacy concerns with any of these approaches considering the sensitive nature of guardianship discussions.

Other Statutory Points of Interest. A few other interesting portions of the bill that do not necessarily impact guardianships are as follows:

Masks may be worn for the purpose of ensuring the physical health or safety of the wearer or others. (Section 4.3(a))
A person wearing a mask for physical health and safety shall remove the mask by request of a law enforcement officer during a traffic stop, checkpoint, roadblock, or when the officer has reasonable suspicion or probable cause during an investigation. (Section 4.3(a))
With some exceptions, credentials issued by the Division of Motor Vehicles that expire on or after March 1, 2020, and before August 1, 2020, are extended for five months from the date the credential would otherwise expire. (Section 4.7(b))
Fines, fees, or penalties associated with failing to renew most credentials issued by the Division of Motor Vehicles are waived. (Section 4.7(d))
Involuntary commitment examinations may be done remotely if the respondent and commitment examiner can hear and see each other using telemedicine procedures if the physician is satisfied that his or her determination would not be different if the examination were done in-person. (Section 3F.1(c))

For additional information about the impact of the COVID-19 pandemic on guardianship proceedings, consider watching a webinar presented by Meredith Smith of the UNC School of Government on April 15, 2020, which may be found here.

Should you have other questions or face additional issues that could be addressed by the NCBA Elder & Special Needs Law Section Council, please e-mail me at [email protected].

May 6, 2020/by ElderLaw

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