Right to Counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Protected Person

Guardianship Establishment 

Respondents have the right to counsel in proceedings related to appointment of a plenary guardian per Ariz. Rev. Stat. Ann. § 14-5303(C) (“Unless the alleged incapacitated person is represented by independent counsel, the court shall appoint an attorney to represent that person in the proceeding.”) as well as in matters related to the appointment of a guardian on an emergency basis. See Ariz. Rev. Stat. Ann. § 14-5310(C).  


Termination of Guardianship

But it is unclear whether this right extends to guardianship termination proceedings.  Ariz. Rev. Stat. Ann. § 14-5307(E) states:


Before substituting a guardian, accepting the resignation of a guardian or ordering that a ward's incapacity has terminated, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send an investigator 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. 


It is unclear whether the “following the same procedures” language only applies to the investigator’s interview or to the whole termination process.


Proceedings related to admission for mental health care

Ariz. Rev. Stat. Ann. § 14-5312.01(K and L) (“An attorney appointed pursuant to section 14-5303, subsection C remains the attorney of record until the attorney is discharged by the court. The court shall ensure that a ward whose guardian has been granted inpatient mental health treatment authority is represented by an attorney at all times the guardian has that authority. Unless the court finds that the ward has insufficient assets to meet the ward's reasonable and necessary care and living expenses, the ward shall pay the attorney's reasonable fees.”)


Conservatorship Establishment

There is a right to counsel in matters related to appointment of a temporary conservator under Ariz. Rev. Stat. Ann. § 14-5401.01(C) (“Unless the proposed protected person is represented by independent counsel, the court shall appoint an attorney to represent that person in the proceeding on receipt of the petition for temporary appointment.  The attorney shall visit the proposed protected person as soon as practicable and shall be prepared to represent that person’s interests at any hearing on the petition.”).  The respondent also has a right to counsel in matters related to a plenary conservatorship or other protective order for reasons other than minority.  See Ariz. Rev. Stat. Ann. § 14-5407(B).


Termination of Conservatorship

Ariz. Rev. Stat. Ann. § 14-5430(A) uses language nearly identical to that used in § 14-5307(E), regarding the termination of a guardianship:

The protected person, the conservator or any other interested person may petition the court to terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order.

Presumably, the "same rights and procedures as in an original proceeding" language means that the protected person has a right to counsel in seeking to terminate a conservatorship.  

Appointment of Counsel: categorical Qualified: no