Right to Counsel

Generally

Unrepresented individuals have the right to client-directed counsel in guardianship and conservatorship establishment matters, whether on a plenary (permanent) or on an emergency basis, as do protected persons whose guardians have the authority to admit them for inpatient mental health treatment.  The right to counsel for these individuals extends throughout the time period that the guardian has this authority.  However, it is not clear whether the right to counsel attaches at subsequent guardianship hearings, such as guardianship termination and modification.  And although a protected person seeking to terminate their conservatorship likely has the right to counsel, there is also ambiguity about whether the representation extends to other conservatorship matters.  Accordingly, we have classified the right to counsel as “qualified.”

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).  The role of the attorney is client-directed. See Ariz. R. Prob. Proc., Rule 42 (“The attorney for the subject person must advocate for the subject person’s wishes to the extent the attorney is able to ascertain those wishes. The attorney must, as far as possible, maintain a normal client-lawyer relationship with the subject person. In addition, the attorney must act to protect the subject person’s substantive and procedural due process rights.”).

Regarding attorney’s fees, “[i]f compensation by the ward or the petitioner is not feasible”, the attorney’s fees are paid by the county from general fund appropriations. See Ariz. Rev. Stat. Ann. § 14-5314(F)-(G).  About the duration of representation, in cases that do not implicate a guardian’s authority to admit a protected person for inpatient mental health treatment, in which case the protected person is entitled to counsel for the entire time the guardian has that ability (see below discussion of section  14-5312.01), it is not clear whether the right to counsel extends to subsequent matters, such as guardianship termination or modification, as detailed below.

Guardianship: Subsequent Proceedings

Termination, modification, substitution and resignation

Section 14-5306 clarifies that, unless the protected person has passed away, the methods for termination of a guardianship are those found in Ariz. Rev. Stat. Ann. § 14-5307.  Section 14-5307(E), which covers guardianship substitution and resignation, as well as termination of incapacity findings, 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.

(emphasis added).  It is unclear whether the “following the same procedures” language only applies to the investigator’s interview or to the whole termination process, which would then likely include appointment of counsel.  And section 14-5313, about “[p]roceedings subsequent to appointment”, which would likely include modification of a guardian’s authority, does not mention right to counsel.

Where guardian has authority to admit person for inpatient mental health care

However, in cases where the guardian was granted the authority to admit the protected person for inpatient mental health care, the right to counsel extends for the duration of the time period that the guardian has that authority per 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).  Like in guardianship matters, the attorney serves in a client-directed role per Ariz. R. Prob. Proc., Rule 42.

Conservatorship: Subsequent proceedings

Ariz. Rev. Stat. Ann. § 14-5430(A) states regarding the termination of a conservatorship:

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 if they seek to terminate a conservatorship.  The language is less clear in matters related to substitution or resignation of a conservator:

Before it orders that need for protection no longer exists, substituting a conservator or accepting the resignation of a conservator, the court, following the same procedures to safeguard the rights of the protected person that apply to a petition for appointment of a conservator, may require appropriate accounts and enter appropriate orders to preserve and protect the assets of the estate, to require reimbursement or payment as needed and to transfer assets or title thereto to appropriate successors.

14-5415(E).  It is unclear whether the “following the same procedures” language only applies to accounting and appropriate protective orders or to the whole process, which would then likely include appointment of counsel. Finally, section 14-5416, titled “Petitions for orders subsequent to appointment”, which uses the all encompassing “other appropriate relief” and thus likely includes modification requests, is silent about the right to counsel.