Many attorneys misunderstand the fiduciary duties of a Guardian ad Litem (GAL) in incompetency proceedings in North Carolina, particularly regarding the balance between advocating for the respondent’s express wishes and their best interests.
A common misconception is that a GAL’s primary duty is to advocate for what they believe to be the respondent’s best interests, with a secondary duty to communicate the respondent’s express wishes. However, the statute suggests the opposite.
Under N.C.G.S. § 35A-1107, “the guardian ad litem shall present to the clerk the respondent’s express wishes at all relevant stages of the proceedings. The guardian ad litem also may make recommendations to the clerk concerning the respondent’s best interests if those interests differ from the respondent’s express wishes.” In other words, a GAL must convey the respondent’s express wishes but has the discretion to make recommendations about best interests.
This distinction creates challenges. A GAL may feel conflicted when the respondent’s wishes and their perceived best interests do not align. Another issue arises when a GAL chooses not to opine on best interests—exercising statutory discretion—only to be directly asked by the court.
It’s worth considering why the legislature structured the statute this way.
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