Right to Counsel
While a state may have many statutes, court decisions, or court rules governing appointment of counsel for a particular subject area, a "Key Development" is a statute/decision/rule that prevails over the others (example: a state high court decision finding a categorical right to counsel in guardianships cases takes precedence over a statute saying appointment in guardianship cases is discretionary).
Legislation, Guardianship/Conservatorship of Adults - Protected Person
The court has discretion to appoint counsel for a respondent or protected person in an adult protective proceeding. Or. Rev. Stat. Ann. § 125.025(3)(b).
However, Or. Rev. Stat. Ann. § 125.080(6)(a), as amended in 2021, provides protected persons or respondents with the right to counsel "[i]f the court requires that a hearing be held or a hearing is otherwise required under this section" and one of the following is true:
(A) The respondent or protected person requests that counsel be appointed;
(B) An objection is made or filed to the petition or motion by any person;
(C) The court has appointed a visitor under ORS 125.150, 125.160 or 125.605, and the visitor recommends appointment of counsel for the respondent or protected person; or
(D) The court determines that the respondent or protected person is in need of legal counsel.
But Or. Rev. Stat. Ann. § 125.080(6)(b) clarifies that the "court is not required to appoint counsel under this subsection if the respondent or protected person is already represented by counsel or otherwise objects to appointment of counsel."
The statute specifies that a "court may require that a hearing be held on any petition or motion in a protective proceeding[,]" but a hearing must be held if:
- "the respondent or protected person makes or files an objection to the petition or motion and the objection is not withdrawn before the time scheduled for the hearing"; or
- the hearing relates to "a motion to modify a guardian's powers under ORS 125.323", which may be filed by any interested party to contest the guardian's ability to limit the protected person's preferred associations.
Or. Rev. Stat. Ann. § 125.080(1)-(3) (emphasis added).
In regards to payment of attorney fees and costs for appointed counsel, payment may be made from the guardianship or conservatorship estate, or "[t]he court may determine that the respondent or protected person is financially eligible for appointed counsel at state expense." Or. Rev. Stat. Ann. § 125.080(7).
Since the guardianship statute (Or. Rev. Stat. Ann. § 125.300 et seq.) falls within the Protective Proceedings chapter, this authority extends to guardianship proceedings as well. Additional support for this interpretation is the fact that “protected person” is defined in Or. Rev. Stat. Ann. § 125.005(7) as “a person for whom a protective order has been entered”, and § 125.300(1), which provides the circumstances in which a guardian can be appointed, refers to the “protected person."
Finally, Or. Rev. Stat. Ann. § 125.090 specifies that the same procedures for guardianship establishment proceedings apply to review proceedings, so appointment of counsel would likely apply to review matters as well.
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: categorical Qualified: yes