Right to counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Protected Person

Mich. Comp. Laws § 330.1615, which governs guardianships for the developmentally disabled, specifies the following:

1) A respondent is entitled to be represented by legal counsel.


(2) Unless an appearance has been entered on behalf of the respondent, the court, within 48 hours of its receipt of a petition together with the other documents required by section 612, shall appoint counsel to represent the respondent. Counsel may be appointed from a system or organization that provides legal counsel to indigents, or that has been established for the purpose of providing representation in the proceedings governed by this chapter.


(3) If the respondent prefers counsel other than the counsel appointed, if preferred counsel agrees to accept the appointment, and the court is notified of the preference by the respondent or preferred counsel, the court shall replace the initially appointed counsel with preferred counsel.


(4) If the respondent is indigent, the court shall compensate appointed counsel from court funds in an amount which is reasonable and based upon time and expenses.


(5) The supreme court by court rule may establish the compensation to be paid for counsel of indigents and may require that counsel be appointed from a system or organization that serves developmentally disabled or indigent people.


Mich. Comp. Laws § 700.5305 addresses guardianships for an "individual alleged to be incapacitated".  It requires counsel to be appointed if a) the individual wishes to contest a guardianship petition, to have limits placed on the guardian's powers, or to object to a particular person being appointed guardian; b) the individual requests counsel; or c) the guardian determines it is in the best interests of the individual to have counsel. If the person is indigent, the state must bear the expense of such counsel.  Mich. Comp. Laws § 700.5310(4) states that “Before removing a guardian, appointing a successor guardian, modifying the guardianship’s terms, or terminating a guardianship, and following the same procedures to safeguard the ward’s rights as apply to a petition for a guardian’s appointment, the court may send a visitor to the present guardian’s residence and to the place where the ward resides or is detained to observe conditions and report in writing to the court.”  It is unclear whether the “following the same procedures” language applies to all proceedings to modify or terminate the guardianship (at which point it would likely include the right to counsel) or whether it only refers to the sending of the visitor. 


Pursuant to MCR 5.408, if a petition for modification or written request for modification comes from the legally incapacitated individual and that individual does not have an attorney, the court shall immediately appoint an attorney. If a petition for modification or written request for modification comes from some other party, the court shall appoint a guardian ad litem. If the guardian ad litem ascertains that the legally incapacitated individual contests the relief requested, the court shall appoint an attorney for the legally incapacitated individual and terminate the appointment of the guardian ad litem.

Appointment of Counsel: categorical Qualified: yes