Right to counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Ward

Conn. Gen. Stat. Ann. §§ 45a-649a and 45a-660(c) provide for a right to counsel for indigent respondents in conservatorship establishment and review proceedings.

 

For guardianships of those with an intellectual disability (which appear to be the only kind of guardianship proceedings on the books in Connecticut), Conn. Gen. Stat. Ann. §§ 45a-673 and 45a-681(a)(6) provide a right to counsel for indigent respondents in guardianship establishment and review proceedings.

 

In Gross v. Rell, 40 A.3d 240, 258-259 (Conn. 2012), the court considered the proper role of counsel appointed pursuant to the guardianship statute:

 

Under rule 1.14 (b), "[a] lawyer may seek the appointment of a guardian or take other protective action with respect to a client," but "only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest." Rules of Professional Conduct (2005) 1.14 (b); see also Office of the Probate Court Administrator, supra, p. 2 (attorney should seek appointment of guardian for impaired client "[only] in extraordinary situations ... because the effect will be that no one in the courtroom will be expressing the respondent's strongly held view"). "Ordinarily, if a client is opposed to the [conservatorship] application, the attorney must be also." Office of the Probate Court Administrator, supra, p. 2; see also In re J.C.T., 176 P.3d 726, 735 (Colo. 2007) (American Bar Association has taken position that "a lawyer ... should not ... seek to have himself appointed guardian except in the most exigent of circumstances" [internal quotation marks omitted]); P. Tremblay, supra, 1987 Utah L. Rev. at 552 ("[T]he [legal] profession seeks to adhere to the underlying deology of informed consent while permitting exceptions to that doctrine. This is especially true in commitment-type cases that stress the client's right to decide."); V. Gottlich, "The Role of the Attorney for the Defendant in Adult Guardianship Cases: An Advocate's Perspective," 7 Md. J. Contemp. Legal Issues 191, 201-202 (1996) (under rule 1.14, "even if an attorney thinks the guardianship would be in the client's best interest, the attorney whose client opposes guardianship is obligated ... to defend against the guardianship petition").

 

We recognize that the commentary to rule 1.14 of the Rules of Professional Conduct (2005) provides: "If the person has no guardian or legal representative, the lawyer often must act as de facto guardian." This commentary has been criticized, however, on the ground that, "[t]o the extent it permits ad hoc decisionmaking by the lawyer without either consent or court approval, the [r]ule reincorporates the tension [between the ethical requirement that a lawyer must obtain the client's informed consent for any decision and the reality that an incapacitated client may not be able to grant consent] that has received so much attention in the medical field, but it offers no meaningful assistance regarding how to resolve the tension in practice. In a technical but perhaps significant way, it also violates the law by authorizing action in the absence of direct or proxy consent." P. Tremblay, supra, 1987 Utah L. Rev. at 546. In addition, the commentary is problematic because "[t]he [common-law] presumption of competence ... can easily be construed to mean that all persons are legally competent to make decisions until the presumption has been overcome in a judicial proceeding.... Any third party usurpation of authority without judicial approval or prior consent violates this principle." (Citations omitted.) Id., 546 n.130. In light of these concerns, it is reasonable to conclude that, like the commentary recognizing that an attorney may be required to seek the appointment of a guardian, the commentary recognizing that an attorney may have to act as the client's de facto guardian applies only in exceptional cases where it is inescapably clear that the client is unable to make reasonable and informed decisions and immediate action is required to protect an important interest of the client. See In re J.C.T., supra, 176 P.3d 735 (although commentary to rule 1.14 stated in 2005 that "the lawyer must often act as de facto guardian," American Bar Association has taken position that "a lawyer ... should not act as ... guardian except in the most exigent of circumstances, that is, where immediate and irreparable harm will result from the slightest delay" [internal quotation marks omitted]).

 

On the basis of the foregoing, we conclude that, with respect to attorneys for respondents in conservatorship proceedings, the primary function of such attorneys under rule 1.14 of the Rules of Professional Conduct is to advocate for the client's express wishes. Although an attorney might be required in an exceptional case to act as the client's de facto guardian, that is not the attorney's primary role.

 

Appointment of Counsel: categorical Qualified: no