Guardians: Don’t Forget to File a Notice of Change of Address with the Court
Adult guardianship law in North Carolina underwent several significant changes effective January 1, 2024. My colleague, Timothy Heinle, and I previously blogged about two of these changes resulting from Session Law 2023-124, available here (notice of rights) and here (less restrictive alternatives). One change that may have slipped under your radar is found in G.S. 35A-1242(e) and imposes a new obligation on guardians to file a notice of change of address with the court.
Who is Obligated to File the Notice
Every guardian of the person and general guardian appointed by the court pursuant to G.S. Chapter 35A must file the notice of change of address. G.S. 35A-1242(e).* The amended statute only references “guardian of the person,” but because a general guardian includes guardianship of the person, the obligation to file extends to both general guardians and guardians of the person. See G.S. 35A-1202(7) (defining the term general guardian). A guardian of the estate is not required to file the notice. For purposes of this post, “guardian” includes a guardian of the person and a general guardian; it does not include a guardian of the estate.
The statutory changes in S.L. 2023-124 are effective as to “petitions filed on or after” January 1, 2024. S.L. 2023-124, sec. 7.13. A petition for adjudication of incompetency (and application for appointment of a guardian) initiates the process that ultimately results in the appointment of a guardian. The obligation to file a notice of change of address applies if the petition was filed on or after January 1, 2024. It does not apply to guardians who were appointed as the result of a petition filed before January 1, 2024. For example, a petitioner files a Petition for Adjudication of Incompetence and Application for Appointment of a Guardian on December 15, 2023, alleging Lily Perez lacks capacity and needs a guardian. The court enters an order adjudicating Lily incompetent and appoints a county department of social services as her guardian of the person on January 15, 2024. If Lily later moves to a new address, the guardian is not obligated to file a notice of change of address because the changes enacted by Session Law 2023-124 do not apply to Lily’s case. The petition for adjudication in her case was filed before January 1, 2024.
When and Where is the Notice Filed
The duty to file the notice is triggered when the guardian has knowledge of the ward’s change in residence. G.S. 35A-1242(e). For example, on the date the ward is adjudicated incompetent and a guardian is appointed by the court, the ward is living at home. Two years later, due to the ward’s deteriorating dementia, the guardian moves the ward to a long-term memory care facility. The guardian’s duty to file the notice of change of address is triggered when the guardian has knowledge of the change in residence, which in this case would be the date the ward moves to the facility.
The guardian has 30 days from the date the guardian has knowledge of the ward’s change in residence to file the notice with the court. Id. The notice is filed with the court in the ward’s existing guardianship (“E”) file. There is no duty imposed on the guardian or the court to serve the notice of change of address on any party or other interested person in the guardianship proceeding. See G.S. 35A-1242(e).
Content and Form of the Notice
The notice filed with the court must contain the
- ward’s previous address,
- ward’s new address, and
- date the ward moved to the new address. G.S. 35A-1242(e).
A sample form notice of change of address may be downloaded here and used as a guide.
Guardians who are required to file status reports under G.S. 35A-1242(a1)(3) may wonder whether their obligation to include in that report an update on the ward’s residence satisfies this new notice of change of address requirement. The requirement to file notice of change of address under G.S. 35A-1242(e) is separate from this obligation. However, it seems that this notice could be included in a status report, provided that the status report includes the information required under G.S. 35A-1242(e) and is filed within 30 days of the guardian’s knowledge of the ward’s change of address. The sample notice provided in this post is a standalone form, but it could be incorporated into a status report.
How to Ensure Compliance and Oversight
It may be easy to overlook this new legal requirement given the other significant changes that were enacted by S.L. 2023-124. Guardians, including county departments of social services who serve as guardian, should make note of this duty, and ensure they comply with the law going forward. Individuals who are appointed as guardians, such as family members, may be especially unfamiliar with the new requirements under G.S. 35A-1242(e). Clerks may want to consider adopting a practice of informing guardians of this duty at the guardianship hearing or at the time the guardian qualifies and receives their letters of authority to act as guardian from the court.
It may become known to the court, either through a status report or other evidence presented to the court in a proceeding related to the guardianship, that the guardian failed to comply with the duty to file a notice of change of address. Alternatively, the guardian may have complied with the duty to file the notice, but the court or others interested in the proceeding may have questions or concerns related to the change of address, including whether the guardian applied the required statutory preferences under G.S. 35A-1241(a)(2) when deciding on the ward’s residence. This includes preferences for in-state over out-of-state residences, residences that are not treatment facilities over residences that are treatment facilities, and residences that are community-based treatment facilities over ones that are not community based. G.S. 35A-1241(a)(2). Any interested person or the clerk, on the clerk’s own motion, may file a motion in the cause under G.S. 35A-1207(a) to consider any matter pertaining to the guardianship. This may include a motion to address the failure of the guardian to comply with the requirements under G.S. 35A-1242(e) or to consider the appropriateness of the change in the ward’s address.
Going Forward
The new obligation to file a notice of change in the ward’s address serves the purpose of bringing greater transparency and oversight to guardianship proceedings. It is a small change in the scope of changes brought about by S.L. 2023-124 but one that is important to note for guardians, clerks, and others interested in guardianship in North Carolina.
* Many of the changes enacted by S.L. 2023-124 are specific to adult guardianship. It is unclear whether the obligation to file a notice of change of address applies to guardians of minors. The obligation to file the notice of change of address applies to “every guardian of the person” upon knowledge of “a ward’s change of residence.” G.S. 35A-1242(e). A “ward” is defined to include both incompetent adults and minors. G.S. 35A-1101(17) (defining a ward as “a person who has been adjudicated incompetent or an adult or minor for whom a guardian has been appointed by a court of competent jurisdiction”). However, subsection (e) was added to section G.S. 35A-1242, which pertains to requirements applicable to a guardian for an incompetent person. An incompetent person, as defined in G.S. 35A-1202(11), includes adults, emancipated minors, and minors who are at least 17.5 and by a reason other than minority are incompetent. It specifically does not include minors who are incompetent under the law due solely to their minority. Clarification of whether the requirement to file a notice of change of address extends to guardians for minors may require a technical correction to the statute.
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