Right to counsel

Generally

 

In guardianship proceedings, the court may appoint an attorney if it believes the interests of the minor "are or may be inadequately represented."  In conservatorship establishment matters, and in matters related to termination or modification, as well as for removal petitions filed by the minor, there is a right to counsel upon request or if the minor contests.  In emergency conservatorship appointments, or if an individual other than a minor files a petition for removal of the conservator, there is likely no right to counsel.  Finally, in other protective arrangement matters, minors have the right to counsel upon request or if they contest any aspect of the proceeding or its scope. 

 

Because the right to counsel in guardianship matters is discretionary and the right to counsel does not extend to emergency conservatorship cases, the right to counsel is classified as qualified.

  

Guardianship

At any stage: Discretionary appointment of counsel

 

In a matter for judicial appointment of a guardian, ["i]f the court determines at any stage of the proceeding, before or after appointment, that the interests of the minor are or may be inadequately represented, the court may appoint an attorney to represent the minor..." Me. Rev. Stat. tit. 18-C, § 5-205(5).  The section goes on to specify that "[a] minor 14 years of age or older ... may consent, object or otherwise participate in the proceeding." Id. 

 

Petitions to terminate and revocations of consent filed by parent: Discretionary appointment if contested

 

In matters related to a parent’s filing of a petition to terminate the guardianship or where a parent seeks to revoke their prior consent, the court may appoint counsel for the minor if the matter is contested per Me. Rev. Stat. tit. 18-C, § 5-210(7).

 

Objections and emergency appointments: No right to counsel found

Me. Rev. Stat. tit. 18-C, § 5-203 provides as to objections,

 

Until the court has confirmed an appointee under section 5-202, a minor who is the subject of an appointment by a parent and who has attained 14 years of age, the other parent or a person other than a parent or guardian having care or custody of the minor may prevent or terminate the appointment at any time by filing a written objection in the court in which the appointing instrument is filed and giving notice of the objection to the guardian and any other persons entitled to notice of the acceptance of the appointment... The court may treat the filing of an objection as a petition for the appointment of an emergency or interim guardian under section 5-204 and proceed accordingly.

 

(emphasis added).  No provisions requiring appointment were found in the section governing objections nor in Section 5-204. See id. and Me. Rev. Stat. tit. 18-C, § 5-204(4).  In fact, Section 5-204 specifies that a court may appoint a guardian on an emergency basis if "[f]ollowing the procedures set forth in section 5-205... will likely result in substantial harm to the minor's health or safety before a guardian can be appointed". Me. Rev. Stat. Ann. tit. 18-C, § 5-204(4)(A)(3).  However, another factor that is required for emergency appointment is that a petition for the appointment of a guardian is pending, which would trigger the right to counsel provisions detailed above. Id. at (4)(A)(4).

 

Furthermore, the Uniform Guardianship, Conservatorship and Other Protective Arrangements ("UGCOPA") Act does not require the appointment of counsel for the child upon the appointment of an emergency guardian, so this omission does not impact the classification of the right to counsel.

 

Conservatorship

 

Plenary establishment: Right to counsel if request or contest

 

Section 5-406 provides as to the appointment of counsel for the respondent:

 

The court shall appoint an attorney to represent a respondent in a proceeding on a petition under section 5-402 if:

A. Requested by the respondent;
B. Recommended by the visitor;
C. The court determines that the respondent needs representation; or
D. It comes to the court's attention that the respondent wishes to contest any aspect of the proceeding or to seek any limitation on the proposed conservator's powers.

 

Me. Rev. Stat. Ann. tit. 18-C, § 5-406(1).  The attorney serves in a client-directed role and must "[m]ake reasonable efforts to ascertain the respondent's wishes". Id. at (2).

 

Termination and modification petitions filed filed by conservator or other: Presumptive right to counsel upon request or contest

 

According to Maine Revised Statutes Title 18-C, Section 5-431, 

 

1. A conservatorship for a minor terminates on the earlier of:

A. An order of the court;
B. The minor becoming an adult or, if the minor consents or the court finds by clear and convincing evidence that substantial harm to the minor's interests is otherwise likely, attaining 21 years of age;
C. Emancipation of the minor; and
D. Death of the minor.

 

The minor, the conservator or a person interested in the minor's welfare may ask the court to terminate or modify the conservatorship. See id. at (3).  The statute provides, "Unless the court orders otherwise for good cause, before terminating or modifying a conservatorship, the court shall follow the same procedures to safeguard the rights of the individual subject to conservatorship that apply to a petition for conservatorship." Id. at (8) (emphasis added).  Accordingly, Section 5-406(1) presumably applies, and the court must appoint counsel if any of the four statutory factors detailed above are present.

 

Termination, modification, and removal petitions filed by minor: Right to counsel upon request or contest

 

If an unrepresented minor seeks to terminate or modify the conservatorship or request removal of the conservator and appointment of a successor, "the court shall appoint an attorney under the same conditions in section 5-406." See Sections 5-431(9) (as to termination and modification) and 5-430 (as to removals and successor petitions).

  

Removal petitions filed by conservator or other: No right to counsel found

 

Unlike the section governing termination and modification, the provisions governing removal and appointment of a successor conservator do not have a broad statement directing the court to use the "same procedures to safeguard the rights of the individual subject to the conservatorship that apply to a petition for conservatorship." See Me. Rev. Stat. tit. 18-C, § 5-430.  Accordingly, if someone other than the minor files a petition for removal, there is likely no statutory right to counsel.

 

Emergency appointment: No right to counsel found

 

The right to counsel does not extend to emergency appointment per Section 5-413.  The Comment to the section states, "Contrary to the Uniform Act, section 5-413 does not provide for the automatic appointment of an attorney for the respondent."

 

Other protective arrangements

 

At any stage: Right to counsel if request or contest

 

If a less restrictive alternative to guardianship or conservatorship would be appropriate, "other protective arrangements" can be sought. See Me. Rev. Stat. Ann. tit. 18-C, §§ 5-502 and 5-503 (bases for protective arrangements as alternatives to guardianship and conservatorship).  In such matters, Section 5-507(1) provides as follows:

 

The court shall appoint an attorney to represent the respondent in a proceeding under this Part if: 

 

A. Requested by the respondent; 

B. Recommended by the visitor; 

C. The court determines that the respondent needs representation; or

D. It comes to the court's attention that the respondent wishes to contest any aspect of the proceeding or to seek any limitations on the protective arrangement.

 

Although the Part covers "Other Protective Arrangements" for both adults and minors, nothing within the General Provisions Part (nor within the Section covering "Appointment and role of attorney" within the "Other Protective Arrangements" Part) indicates that the use of the term "respondent" is limited to adult respondents in the right to counsel section above.  In fact, a "respondent" is defined simply as "an individual for whom appointment of a guardian or conservator or a protective arrangement instead of guardianship or conservatorship is sought." See § 5-102(28).

 

Thus, the right to counsel presumably applies equally to respondents who are minors.