Right to Counsel

Key_development Question_mark

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), 125.080(4). 


However, Or. Rev. Stat. Ann. § 125.080(5)(a), as amended in 2021, requires the appointment of counsel for a protected person in an adult protective proceeding where a hearing is required 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.

 

Or. Rev. Stat. Ann. § 125.080(5)(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."


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."

 

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 as well.

 

Appointment of Counsel: categorical Qualified: yes