Right to counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Protected Person

Guardianship establishment

The respondent has the right to counsel in the guardianship proceedings pursuant to Alaska Stat. § 13.26.226(b), and “[i]f the respondent is financially unable to employ an attorney, the court shall appoint the office of public advocacy (AS 44.21.400) under AS 13.26.291 to represent the respondent in the proceedings.” Id.  But the respondent is responsible for their attorneys’ fees, unless either of the following conditions apply:

  • The court finds that this would result in financial hardship or in the respondent “becoming dependent upon a government agency or a private person or agency[,]" in which case the state pays all or part of the costs.  Alaska Stat. § 13.26.291(b)-(c); or
  • If the petitioner files a case that is “malicious, frivolous, or without just case,” the petitioner may be responsible for all or part of the cost for respondent's attorney. Alaska Stat. § 13.26.291(d); see also Alaska Stat. § 13.26.201 (a guardianship for an incapacitated person shall be used “only as is necessary to promote and protect the wellbeing of the person…” ).

Guardianship termination, modification, and removal or resignation of guardian

Finally, the protected person is presumably entitled to an attorney in hearings related to removal of the guardian, change of the guardian's responsibilities, resignation of the guardian, or change or termination of the guardianship.  Before taking any of these actions, Alaska Stat.§ 13.26.286(c) requires:

the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian and applying the least restrictive alternative necessary to meet the needs of the ward after consideration of alternatives to guardianship services, 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.

But it is unclear whether the "same procedures" language applies to just the visitor's observation or the whole proceeding.  And because this provision incorporates "the same procedures . . . as apply to a petition for appointment of a guardian[,]" the court would likely consider the financial ability of the protected person in deciding whether to appoint and may require the protected person to pay attorneys fees unless this would result in financial hardship.


Conservatorship establishment

In conservatorship matters, the respondent has a right to appointed counsel as well.  Alaska Stat. § 13.26.430(b).  Unlike the right to counsel in guardianship proceedings under Alaska Stat. § 13.26.226, there is no mention of an indigency requirement for the right to counsel in conservatorships.

Appointment of Counsel: categorical Qualified: yes