Linda Kendall Fields, of the UNC-CH Jordan Institute of Families, and Sean Brady, a student and employee at Alamance Community College, talk over issues of guardianship at a Feb. 25 Rethinking Guardianship summit. Staff Photograph: Thomas Goldsmith

A group spanning academia, state government and nonprofits has worked since 2015 to craft new approaches to adult guardianship in North Carolina.

By Thomas Goldsmith

As part of his work as a groundskeeper at Alamance Community College, Sean Brady has had the chance to travel as far away as Utah and Las Vegas for trade conferences.

But until 18 months ago, Brady, 34, had to ask his stepmother for permission to travel, because between 2014 and 2017 she had been given responsibility for him under North Carolina’s adult guardianship statutes. He’s one of a small minority of people subject to guardianship in North Carolina to have his rights restored.

“Now we don’t have to chase down my father’s wife to get permission to go on these trips,” Brady, also a horticulture student at the community college, said Feb. 25 during a Raleigh summit meeting on adult guardianship.

The group Rethinking Guardianship has been working since 2015 on ideas for changing the North Carolina laws and practice governing the removal of a person’s right to make life decisions. If a person is found to lack the ability to make and communicate key decisions, a North Carolina county clerk of court can name someone to look after his or her affairs.

Related: Check out our three-part series on guardianship from 2017.
To read the final Rethinking Guardianship report, click here

The working group has an active legislative subgroup looking at potential changes to be proposed to the General Assembly, perhaps as early as this month. Presenter and member Linda Kendall Fields, from the UNC-Chapel Hill Jordan Institute for Families, said recommended changes include:

• Using the least restrictive possible setting for the person,
• A requirement that alternatives are considered before guardianship,
• Making sure people know they can have their own lawyers, and
• A process for regular review rather than creating “forever guardianship.”

Words matter

The group also recommends replacing the current law’s outmoded terms, such as “ward” and “incompetent,” to describe people subject to guardianship.

“I think they have kind of a meaning today that has changed from what it was in 1987,” said Raj Premakumar, assistant attorney general at the state Department of Justice. “Using those terms can be dehumanizing.”

A Rethinking Guardianship report suggests using “people-first” terminology such as “person under guardianship” for “ward” and “limited capacity” for “incompetence.”

“Language matters because it shapes the way that we think,” said summit speaker Erica Wood, who coordinates guardianship programs nationally at the American Bar Association Commission on Law and Aging. “Under the Uniform Law, they suggest using ‘adults subject to guardianship’ because ‘under’ was thought to have negative connotations.”

Related: Last year, North Carolina changed many statutes to put “people first.”

Overall, the suggestions are in line with the Uniform Guardianship Conservatorship and Other Protective Arrangements Act, model legislation developed by the nonprofit Uniform Law Commission and approved by the American Bar Association in 2018.

“She didn’t reveal”

About 5,000 people in North Carolina have appointed public guardians, some 85 percent of them with intellectual or other developmental disability and/or mental illness, according to the NC Council on Developmental Disabilities. The Rethinking Guardianship group’s approaches — such as increased oversight and finding housing in alternative settings — could help in some of the fraught cases that attendees heard about at the recent summit.

“The son was turning 18, the mother received guardianship,” Kim Sigmon, Catawba County clerk of court, said of a case in her Graham office. “Then there was a motion to modify guardianship; the reason was the mother was going to prison. She had a felony trafficking in drugs charge in another state that had been pending.

“She didn’t reveal any of that.”

After the Raleigh event, Brady said he had had a guardian appointed because he had been diagnosed as having symptoms of autism. Eventually tiring of his guardian’s oversight, Brady encountered people at Rethinking Guardianship and hired a lawyer. His restoration, as the process is called, put him among the 3 percent of North Carolinians who have successfully petitioned a court to be released.

Let’s work together

Brady’s story also reflects the principles of supported decision making, in which a person can ask for help with finances, health care and daily living, without the formality of a court appointment. That’s according to a summary by Lifetime Connections, part of the statewide nonprofit First in Families.

In Brady’s case, the court felt comfortable restoring his rights because he had support in keeping track of his finances and other key areas, UNC’s Fields said.

“Henry Ford didn’t build the automobile by himself,” Brady said.

Rethinking Guardianship is a project of the NC Council on Developmental Disabilities, the NC Division of Aging and Adult Services and the UNC-CH School of Social Work’s Jordan Institute for Families.

The original aarticle ran in North Carolina Health News Online on March 4, 2019