Right to counsel

Key_development Question_mark

04/02/2024, Legislation, Civil Commitment

The court must appoint counsel for indigent respondents in a variety of civil commitment proceedings. See e.g., Idaho Code Ann. §§ 66-326 (those detained temporarily and without a hearing based on suspicion of grave disability due to mental health); 66-329(7) (applications for commitment due to mental health); and 66-406(7) (applications for commitment due to developmental disability).  This includes indigent respondents alleged to lack the capacity to make informed decisions about treatment due to their mental health and who are the subject of a petition for the appointment of a guardian who will handle treatment decisions. Idaho Code Ann. §§ 66-322(e)-(f). 

The State Public Defender Act incorporates the above provisions, providing that indigent persons who are being detained, who are confined, or who are the subject of hospitalization proceedings under these sections are entitled to representation "at all stages" including any appeal. See Idaho Code Ann. § 19-6009. 


Juvenile respondents also have the right to counsel pursuant to Section 16-2429(1).  For juveniles, the court takes into consideration both the juvenile and their parents' ability to afford counsel. Id. ("When a child has not retained an attorney and is unable to do so, or the child and his parents are unable to afford one, and proceedings under this chapter have been initiated in court, the court shall appoint an attorney to represent him in court proceedings.")

In April 2024, the Idaho legislature enacted SB 1247, creating a new procedure through which someone likely to have a "neurocognitive disorder" who is in acute crisis can be subject to involuntary care or treatment proceedings.  The new law creates a right to appointed counsel for unrepresented respondents in such matters "no later than the time the application for emergency protective placement is received by the court." See Idaho Code § 56-1905(7).

A "neurocognitive disorder" is defined under the law as "decreased mental function due to a medical disease other than a psychiatric illness, including:"  Alzheimer's disease, HIV, Parkinson's disease, traumatic brain injury, and certain kinds of dementia. See Idaho Code § 56-1903(6), incorporating the definition found at Section 66-317(13).

Appointment of Counsel: categorical Qualified: no