Right to counsel

Key_development Question_mark

Legislation, Sterilization

Sections 5701 through 5716 of Title 16 of the Delaware Code address involuntary sterilization proceedings in Delaware.  According to § 5705, the following individuals may file a petition for involuntary sterilization:


(1) The chief executive officer of the institution in which the person to be sterilized resides;
(2) The head of the state agency responsible for such person if the person is not a resident of an institution;
(3) The parent or guardian of such person; or
(4) Any state agency which by virtue of the scope of its powers and jurisdiction has an interest in the sterilization of the person.


Two provisions are relevant to the respondent's right to counsel in such proceedings, though it is not whether a right to appointed counsel is provided.  While Section 5710 of Title 16 of the Delaware Code states, "Any person for whom sterilization is sought shall have the following procedural rights: (1) The right to counsel ...", section 5709(a) indicates that "[t]he Court shall appoint a guardian ad litem or attorney or both for the respondent" (emphasis added).  And because Chapter 57 does not define "guardian ad litem," it is not clear whether the GAL must be an attorney. See 16 Del. § 5701.

Regarding payment of attorneys fees, § 5716(b) provides that "[t]he Court may order that the costs of any proceedings under this chapter be paid for from resources available to the receipient of these proceedings. If such resources are not available, the Court may order that the costs of any proceeding under this chapter be borne by the State."

Appointment of Counsel: categorical Qualified: yes