Discretionary appointment of counsel

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Legislation, Guardianship/Conservatorship of Adults - Protected Person

In proceedings for disability guardianships and conservatorships, “[t]he allegedly incapacitated person may have counsel of the person’s own choice,” which presumably refers to private counsel, “or the court may, in the interest of justice,” direct the state public defender’s office “to assign counsel pursuant to the Montana Public Defender Act” (MPDA).  See Mont. Code Ann. § 72-5-315(2).  See also § 47-1-104(4)(b)(vii) (implementing provision of MPDA).  In proceedings to appoint a successor guardian or terminate incapacity, “the court shall follow the same procedures to safeguard the rights of the ward that apply to . . . appointment of a guardian.”  See § 72-5-325(3).  These rights presumably include the discretionary appointment of counsel provided by § 72-5-315(2). 


An individual who is subject to a guardian’s petition for involuntary mental health treatment “is entitled to the assignment of counsel, in accordance with the provisions of the” MPDA.  See § 72-5-322(2).  See also § 47-1-104(4)(b)(viii) (implementing provision of MPDA).  In addition, the individual is entitled to “all the other rights guaranteed . . . under [§§] 53-21-114, 53-21-115, 53-21-119, and 53-21-120.”  § 72-5-322(2).  Section 53-21-115 entitles an individual to all rights “guaranteed by the constitution of the United States and of [Montana], by the laws of [Montana], or by” the mental illness treatment statutes.  Moreover, § 53-21-119(1) provides that “[t]he right to counsel may not be waived.  The court also has discretion to appoint a public defender for an “eligible” litigant in an appeal of any proceeding where counsel may be appointed pursuant to the MPDA.  See § 47-1-104(4)(c).  The MPDA does not appear to define the term “eligible,” but the Act does contain a section concerning “eligibility,” which provides that eligibility requires a finding of indigence.  See generally § 47-1-111.  Thus, it appears that a showing of indigence is required for appointment of counsel in all appeals, even if appointment in the initial proceeding did not require such a showing.

Appointment of Counsel: discretionary Qualified: no