Right to counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Protected Person

In adult guardianship proceedings, whether due to mental health or developmental disability, the respondent has a right to counsel. 


In mental-health related guardianships and conservatorships, the statute provides that the court “shall appoint counsel for the respondent when an initial petition . . . is filed”; in any subsequent proceeding, the court shall appoint counsel upon the respondent’s or a party’s written request, and may appoint counsel upon its own initiative.  See 14 V.S.A. § 3065(a)(1). However, a court rule states that counsel is required for respondents who have not retained counsel in "all proceedings involving adults under Subchapter 12 of 14 V.S.A. Chapter 111...".  The court rule does not contain a request requirement. Vt. R. Prob. P. R. 80.10(a)-(b) (emphasis added).  

Per statute, the right to counsel extends to matters related to the appointment of an emergency temporary guardian as well. See 14 V.S.A. § 3081(b).  A list of pro bono counsel is maintained and given preference for appointment above legal services organizations. Id. at § 3065(c). 

Similarly, in proceedings related to a guardianship or conservatorship sought due to developmental disability, the statute states, “Upon the filing of the petition, the court shall appoint counsel for the respondent”. 18 V.S.A. § 9308.  The right to counsel also applies in matters related to modification or termination of the guardianship per 18 V.S.A. § 9316(c).  A right to counsel is provided for by court rule as well.  Vermont Rules of Probate Procedure, Rule 80.10, provides that in “all proceedings involving adults under ... 18 V.S.A. Chapters 215”, "the court shall assign counsel pursuant to Administrative Order No. 32 to represent the respondent unless counsel has been retained by that person.” Vt. R. Prob. P. R. 80.10(a)-(b).

Appointment of Counsel: categorical Qualified: no