Right to counsel

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Legislation, Guardianship/Conservatorship of Adults - Protected Person

In guardianship proceedings, Utah Code Ann. § 75-5-303 provides:


(2) (a) Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity. (b) Unless the allegedly incapacitated person has counsel of the person’s own choice, the court shall appoint an attorney to represent the person in the proceeding the cost of which shall be paid by the person alleged to be incapacitated, unless the allegedly incapacitated person and the allegedly incapacitated person’s parents are indigent. (c) If the court determines that the petition is without merit, the attorney fees and court costs shall be paid by the person filing the petition. (d) If the court appoints the petitioner or the petitioner's nominee as guardian of the incapacitated person, regardless of whether the nominee is specified in the moving petition or nominated during the proceedings, the petitioner shall be entitled to receive from the incapacitated person reasonable attorney fees and court costs incurred in bringing, prosecuting, or defending the petition.
(3) The legal representation of the incapacitated person by an attorney shall terminate upon the appointment of a guardian, unless: (a) there are separate conservatorship proceedings still pending before the court subsequent to the appointment of a guardian; (b) there is a timely filed appeal of the appointment of the guardian or the determination of incapacity; or (c) upon an express finding of good cause, the court orders otherwise.
. . .
(5) . . . (d) Counsel for the person alleged to be incapacitated, as defined in [§] 75-1-201(22), is not required if: (i) the person is the biological or adopted child of the petitioner; (ii) the value of the person’s entire estate does not exceed $20,000 as established by an affidavit of the petitioner in accordance with [§] 75-3-1201; (iii) the person appears in court with the petitioner; (iv) the person is given the opportunity to communicate, to the extent possible, the person’s acceptance of the appointment of petitioner; (v) no attorney from the state court's list of attorneys who have volunteered to represent respondents in guardianship proceedings is able to provide counsel to the person within 60 days of the date of the appointment described in Subsection (2); (vi) the court is satisfied that counsel is not necessary in order to protect the interests of the person; and (vii) the court appoints a visitor under Subsection (4).


Thus, there are certain circumstances where the court does not have to appoint counsel.


Utah Code Ann. § 75-5-307(3) specifies that “Before removing a guardian, accepting the resignation of a guardian, or ordering that a ward’s incapacity has terminated, the court shall follow the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian as provided in Section 75-5-303. The court is not required to appoint an attorney to represent the ward if the case is uncontested and the ward’s incapacity is not at issue.”  See also Utah Code Ann. § 75-5-310.5(2) (requiring appointed counsel for temporary guardianships).

Appointment of Counsel: categorical Qualified: yes