RECENT CHANGES TO NORTH CAROLINA GUARDIANSHIP LAW STRENGTHEN THE RIGHTS OF RESPONDENTS AND WARDS, WHILE POTENTIALLY INCREASING THE BURDEN ON PETITIONERS, GUARDIANS, GUARDIANS AND LITEM, AND OTHERS

In 2021, The New York Times released the headline-seizing documentary film Framing Britney Spears. The film explored the so-called “#FreeBritney Movement”—a term used to describe a loosely organized effort by Spears’ dedicated and vocal fanbase to end a California conservatorship that empowered Spears’s father, as conservator, to exercise significant control over her personal and financial affairs. A similar grassroots movement arose among the fans of former Nickelodeon star Amanda Bynes and culminated in termination of a nearly decade-long California conservatorship that likewise constrained keys aspects of her individual decision-making.

California is, however, hardly alone among jurisdictions that prescribe procedures and mechanisms for wresting control from individuals deemed incapable of managing aspects of their lives. In North Carolina, such arrangements are called guardianships, rather than conservatorships. Effective January 1, 2024, several key legislative changes altered aspects of the statutory regime governing North Carolina guardianships. Many of these changes appear to be motivated by a desire to ensure that respondents in guardianship proceedings (i.e., those who may ultimately be adjudicated as incompetent) are better apprised of their rights and subject to fewer limitations on their individual liberty.

For example, the guardianship statutes now make clear that a person will not be adjudicated as an incompetent and subjected to a guardianship “if, by means of a less restrictive alternative, he or she is able to sufficiently (i) manage his or her affairs and (ii) communicate important decisions concerning his or her person, family, and property.” This idea was implicit in the law of guardianship prior to the recently enacted legislative changes but is now made explicit. The statute also includes an express definition of the term “less restrictive alternative”:

An arrangement enabling a respondent to manage his or her affairs or to make or communicate important decisions concerning his or her person, property, and family that restricts fewer rights of the respondent than would the adjudication of incompetency and appointment of a guardian. The term includes supported decision making, appropriate and available technological assistance, appointment of a representative payee, and appointment of an agent by the respondent, including appointment under a power of attorney for health care or power of attorney for finances.

In other words, and as but one example of a potential “less restrictive alternative,” if a person executed a durable power of attorney prior to experiencing any issues impacting his or her competency, the existence of that durable power of attorney might be viewed as obviating the need for an adjudication of incompetency and the appointment of a guardian of the estate or general guardian for the principal under the power of attorney, even if the person might otherwise meet the criteria to qualify as an incompetent adult.

The new law also requires the petition in any guardianship proceeding to affirmatively include a “statement identifying what less restrictive alternatives have been considered prior to seeking adjudication and why those less restrictive alternatives are insufficient to meet the needs of the respondent.”

Another significant update concerns the respondent’s right to receive a mandatory, conspicuous notice that advises the respondent, without limitation, of the following:

– The right to counsel of choice;

– The right to be represented by a court-appointed guardian ad litem;

– The right to receive notice of any hearings and copies of documents filed in the proceeding;

– The right to gather and present evidence;

– The right to a hearing before being adjudicated as incompetent;

– The right to have a jury determine the issue of competency;

– The right to ask for a non-public hearing;

– The right to communicate his or her wishes regarding the exercise of any of his or her rights and the selection of any potential guardians; and

– The right to appeal.

A respondent is also now entitled to be notified about the rights he or she will have in the event that a court ultimately adjudicates the respondent as an incompetent ward, including, without limitation, the following:

– The right to a qualified and responsible guardian;

– The right to request that the administration of the guardianship be transferred to a different county of venue;

– The right to request that he or she be restored to competency;

– The right to request a review or modification of the guardianship; and

– The right to vote.

A guardian ad litem appointed to represent the respondent’s best interests must explain these rights to the respondent if the respondent requests such explanation during the guardian ad litem’s personal visit with the respondent. In any proceedings following an adjudication of incompetency in which a guardian ad litem is appointed for the incompetent ward, the guardian ad litem is likewise under a continuing, mandatory, affirmative duty to explain these rights. Finally, the written notice advising the respondent of these rights mut be served on the ward alongside the petition and notice of hearing.

In keeping with the general tenor of many of these updates, the law also now expressly states that, in the case of adults, “guardianship should always be a last resort and should only be imposed after less restrictive alternatives have been considered and found to be insufficient to meet the adult’s needs.”

If you need legal assistance in instituting a North Carolina guardianship proceeding as a petitioner or defending against a proceeding or seeking modification of an existing guardianship as a respondent, ward, or other interested person, attorneys at Blanco Tackabery may be able to help you navigate the complexities of this unique legal area. Similarly, if you have been appointed as the guardian for an incompetent ward and need advice concerning administration of a guardianship and compliance with your fiduciary obligations, please reach out to us today.

 

---

Chad Archer brings extensive expertise in state and federal litigation and was recently named to Business North Carolina’s Legal Elite Honorees 2024 as well as the 2024 edition of The Best Lawyers: Ones to Watch® in America. In his civil litigation practice, he advises clients on a wide range of issues, including trusts and estates, appeals, contract disputes, commercial and corporate disputes, complex business litigation and employment disputes.

 

 

When the NCAA adopted interim rules allowing college athletes to profit from name, image and likeness (“NIL”) in July 2021, it called upon Congress to implement NIL laws at a national level. Nearly three years into the NIL era, that hasn’t happened. Meanwhile, the NCAA had a busy start to 2024, imposing NIL-related sanctions against Florida State University, introducing new transparency requirements for NIL deals, and being sued by several states over its NIL policies.

To understand the current NIL landscape, let’s back up. NIL regulation currently flows from three sources: state government, the NCAA, and schools themselves. Athletes, donors, and businesses should be familiar with each level of regulation to ensure their NIL deals don’t put them–or schools they support– at risk of serious penalties.

North Carolina’s NIL Law

North Carolina’s current NIL law was established via Executive Order No. 223, signed by Governor Cooper on July 2, 2021. The important points to know are: (1) schools cannot make NIL deals directly with student-athletes; (2) NIL deals cannot be used as a direct inducement for a student-athlete to enroll or remain enrolled at a school, and (3) NIL deals cannot be conditioned on performance in competition.

These restrictions are intended to preserve the amateurism of college athletics by ensuring NIL does not create a “free agency” of the kind we see in professional sports, where teams attract players using high salaries and performance-based bonuses. You’ll find that much of the current NIL regulatory scheme was made with that same intent. That notwithstanding, the Order does allow student-athletes to hire agents, so long as they comply with the same state and federal laws that apply to agents for professional athletes.

Finally, North Carolina also gives discretion to its own colleges and universities to establish additional regulations, should they choose to. More on that later.

NCAA Rules

The next layer of regulation comes from the NCAA’s interim rules. The NCAA’s interim policy and supplemental guidance hit many of the same notes as North Carolina’s law – including that NIL opportunities may not be used to induce recruits to attend a particular school.

The NCAA also emphasizes that compensation without quid pro quo is prohibited. Accordingly, NIL agreements must contain expected deliverables, such as endorsement and marketing activities, that the student-athlete has promised in exchange for compensation. In other words, businesses cannot simply write a check with “NIL” in the memo line. It should be clear how the student-athlete’s name, image, and likeness will be used.

Like North Carolina’s law, the NCAA prohibits compensation based on athletic participation and achievement. So, NIL agreements cannot have any of the performance-based incentives that have become so common in professional sports, such as bonuses for reaching thresholds for innings pitched, rushing yards, or games played.

In January, the NCAA concluded its first major case for NIL violations, sanctioning Florida State University after an FSU assistant coach arranged a meeting between a recruit and an FSU booster, during which the booster extended a 1-year, $180,000.00 NIL offer–contingent on transferring to FSU. Following an investigation, the NCAA suspended the coach for three games. Perhaps more damaging, FSU was required to “disassociate” from the booster for three years. Disassociation means the booster cannot provide assistance (financial or otherwise) to FSU, nor can the booster receive any athletics benefit from FSU which would be unavailable to the general public.

The NCAA’s Division I Council also unanimously adopted new disclosure requirements in January. Beginning August 1, 2024, student-athletes must disclose information to their schools regarding all NIL agreements exceeding $600.00 in value. They must disclose the involved parties, terms of the agreement, and any compensation for the student athlete’s service provider (agent, financial advisor, etc.) within 30 days of signing the deal. The NCAA will also be developing standardized contracts and recommended, but not mandatory, contract terms.

While the NCAA’s NIL rules are harmonious with North Carolina’s, that’s not the case everywhere. The attorneys general of Tennessee and Virginia filed suit against the NCAA this week to abolish the NCAA’s NIL regulations on antitrust grounds. The lawsuit follows the NCAA’s investigation into the University of Tennessee’s recruitment of a five-star quarterback from California.

School-Specific Rules

The final layer of regulation comes at the school level. North Carolina’s NIL law gives colleges and universities discretion to prohibit certain deals for reasons specific to that school. For example, schools may prohibit NIL deals which conflict with an existing contract of the institution. So, because NC State has a deal with Adidas for its athletic uniforms, it could prohibit an athlete from signing an NIL deal with Nike, or another competitor.

Schools may also limit the categories of brands a student athlete may enter NIL agreements with. For example, the University of North Carolina at Chapel Hill’s policy prohibits athletes from engaging in NIL deals involving alcohol, gambling, or adult entertainment.

Schools may limit compensation during official team activities and events—probably to prevent a student-athlete from attempting, and brands expecting, promotion of their sponsor’s brand during a game or press conference.

Schools may also require that NIL deals are commensurate with fair market value. So, if an athlete is offered a million dollars for a de minimis obligation, schools have the authority to tamp down. However, that’s something schools are clearly disincentivized to do as it could put them at a competitive disadvantage compared to schools who don’t have the same requirement.

Institutions may also limit NIL pertaining to the school’s intellectual property. For example, Wake Forest could prevent one of its players from using Wake Forest’s logos in the course of an NIL deal. Knowing each school’s policies on intellectual property use in NIL deals is vital to avoid exposure to trademark and copyright infringement.

That’s an overview of the current landscape. But that landscape could change–fast. Support for amateurism in college sports appears to be waning, with polls indicating that a majority of Americans support the notion of directly paying college athletes. Whether Congress will act to standardize NIL law remains to be seen. In the meantime, stakeholders should vet their NIL contracts, both in form and presentation, to ensure they aren’t exposing themselves – or their beloved alma maters – to serious penalties.