Right to counsel

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Court Rule or Initiative, Guardianship/Conservatorship of Adults - Protected Person

In adult guardianship proceedings, Del. Code Ann. tit. 12 § 3901(c) specifies only that the person with the alleged disability is "entitled to representation by counsel," but there is no provision for appointment of counsel.


However, Del. Ch. Ct. R. 176(a) (entitled "attorney ad litem") specifies that upon the filing of a petition for appointment of a guardian, "the Court shall appoint a member of the Delaware Bar to represent the adult person alleged to be disabled if such person is not otherwise represented by counsel..."  The attorney serves in a best interests role and "shall conduct a reasonable investigation into the allegations of the petition, the fitness of the proposed guardian, and all pertinent facts." Id.

If a conflict of interest arises, the court may, but is not required to, appoint a second attorney for the respondent:  "If the attorney ad litem determines the wishes of the person alleged to be disabled diverge from his or her best interests, the attorney ad litem shall advise the Court.  The Court may appoint a second attorney to represent the person with an alleged disability as if engaged by such person and may hold a hearing to determine whether a guardian should be appointed." Id.

Appointment of Counsel: categorical Qualified: yes