Right to counsel

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Legislation, Guardianship/Conservatorship of Adults - Ward

For guardianships/conservatorships, Cal. Health & Safety Code § 416.95 provides a right to automatic appointment of counsel for an adult developmentally disabled person for whom guardianship or conservatorship is sought by the Director of Developmental Services. 

 

Otherwise, appointment of counsel is required when a limited conservatorship is sought of a developmentally disabled person (Cal. Prob. Code §§ 1471(c), 1801(d)), when requested in a full conservatorship proceeding by a person who is “unable to retain counsel” and “whether or not such person lacks or appears to lack legal capacity” (Cal. Prob. Code § 1471(a)), and in full conservatorship proceedings where the judge determines that “appointment would be helpful to the resolution of the matter or is necessary to protect the [person’s] interests”, Cal. Prob. Code § 1470(a).  See also Cal. Welf. & Inst. Code §§ 5465 (in proceeding to establish conservatorship due to “serious mental illness or substance abuse disorders” authorized in certain counties, “If the conservatee or proposed conservatee is not represented by counsel, the court shall appoint the public defender for the conservatee or proposed conservatee within five days after the date of the petition at the county’s or city and county’s expense. A hearing or trial shall not occur under this chapter unless the conservatee or proposed conservatee is represented by counsel”), 5365 (for conservatorships of gravely disabled persons,[1]“A hearing shall be held on all petitions under this chapter within 30 days of the date of the petition. The court shall appoint the public defender or other attorney for the conservatee or proposed conservatee within five days after the date of the petition.”)

 

If court-ordered medical treatment is sought for a ward or conservatee, then “Upon the filing of the petition, unless an attorney is already appointed the court shall appoint the public defender or private counsel under Section 1471, to consult with and represent the ward or conservatee at the hearing on the petition and, if that appointment is made, Section 1472 applies.”  Cal. Prob. Code § 2357.  See also Cal. Welf. & Inst. Code §§ 5350.5 (if court refers conservatee for assessment “to determine if the conservatee has a treatable mental illness, including whether the conservatee is gravely disabled as a result of a mental disorder or impairment by chronic alcoholism, and is unwilling to accept, or is incapable of accepting, treatment voluntarily”, then court must appoint counsel for conservatee if indigent); 5365 (for conservatorships of gravely disabled persons, “A hearing shall be held on all petitions under this chapter within 30 days of the date of the petition. The court shall appoint the public defender or other attorney for the conservatee or proposed conservatee within five days after the date of the petition.”)

Appointment of Counsel: categorical Qualified: yes