Right to counsel

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Legislation, Guardianship/Conservatorship of Adults - Ward

In a case regarding the appointment of a guardian for an alleged disabled person, the court shall appoint an attorney to represent the alleged disabled person, unless the person has counsel of his or her own.  The State shall pay for reasonable attorney's fees for an indigent alleged disabled person in such a case; otherwise the fee shall be paid out of the estate.  Md. Code Ann., Est. & Trusts § 13-705(d).  The Maryland Court of Special Appeals construed these statutes to find that the attorney should act as a client-directed attorney, and not as a guardian ad litem.  In re Lee, 132 Md. App. 696, 718-20, 754 A.2d 426, 438-40 (Md. Ct. Spec. App. 2000).

           

In a guardianship case about providing emergency protective services:

 

(1)  The hearing on a petition for an emergency order for protective services shall be held under the following conditions:

....

(ii)  The person has the right to counsel whether or not he is present at the hearing. Subject to paragraph (2) of this subsection, if the person is indigent or lacks the capacity to waive counsel, the court shall appoint counsel. Where the person is indigent, the State shall pay reasonable attorney's fees.

...

(2)  In any action in which payment for the services of a court-appointed attorney for the person is the responsibility of the local department of social services, unless the court finds that it would not be in the best interests of the person, the court shall:

(i)  Appoint an attorney who has contracted with the Department of Human Services to provide those services, in accordance with the terms of the contract; and

(ii)  In an action in which an attorney has previously been appointed, strike the appearance of the attorney previously appointed and appoint the attorney who is currently under contract with the Department of Human Services, in accordance with the terms of the contract.

 

Md. Code Ann., Est. & Trusts § 13-709(f).  The person who is the subject of an adult guardianship matter also has the right to appointed counsel at the required six-month review hearing held during the pendency of the guardianship, and court-appointed counsel will be provided if he or she is not represented (with no mention of an indigency requirement or who pays for the attorney). Md. Code Fam. Law § 14-404(c)(2).

 

The Maryland Court of Special Appeals has construed the guardianship statutes to find that the attorney should act as a client-directed attorney, and not as a guardian ad litem. In re Lee, 132 Md. App. 696, 718-20, 754 A.2d 426, 438-40 (Md. Ct. Spec. App. 2000).

Appointment of Counsel: categorical Qualified: no