Discretionary appointment of counsel

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Legislation, Guardianship/Conservatorship of Adults - Protected Person

Neb. Rev. Stat. § 30-2619(b) specifies that in guardianship proceedings, "Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity and unless the person alleged to be incapacitated has retained counsel of his or her own choice or has otherwise indicated a desire for an attorney of his or her own choice, the court may appoint an attorney to represent him or her in the proceeding." 


Neb. Rev. Stat. § 30-2626(b) provides a similar discretionary power for temporary guardianships. 


Neb. Rev. St. § 30-2623(c) specifies that for guardianship removal/termination proceedings, "the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send a visitor to the residence of the present guardian 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 "same procedures" is limited to the visitor's actions (which would not incorporate the discretionary appointment of counsel provision) or applies to the whole proceeding. 


In In re Guardianship of Brydon P., 838 N.W.2d 262 (Neb. 2013), the high court observed that Neb. Stat. § 30-2620.01 authorizes payment of attorney fees for the ward's attorney when the ward is an adult, but not when the ward is a minor and not in any situation for a petitioner's attorney. However, the court held that as a matter of public policy, "when a court determines that a petitioner seeks a guardianship appointment for a minor in good faith and that the guardianship is in the minor's best interests, the court is statutorily authorized to assess a successful petitioner's reasonable costs, including attorney fees, against the minor's estate, if an estate exists."  However, the court held that the attorney fees could not be assessed against another party.

Appointment of Counsel: discretionary Qualified: no