Discretionary appointment of counsel

A court must appoint counsel for the subject of an adult protective proceeding if it makes certain findings about the need for counsel.

Generally

Absent court authorization, the department must have the vulnerable adult’s consent to provide services, and services must be terminated if “[t]he vulnerable adult has the capacity to consent and either does not consent or withdraws consent”. Haw. Rev. Stat. § 346-230(a)(1).  

If the adult does not consent and there is probable cause as to the adult’s incapacity, services can be provided nonconsensually.

If the adult does not consent and there is probable cause to believe that the adult lacks capacity, services can be provided on an emergency basis without a hearing or notice through an “order for immediate protection.” Haw. Rev. Stat. § 346-231. The order may authorize medical examinations, transportation to a medical or care facility, emergency medical treatment, and “[a]ny other matters as may prevent immediate abuse, pending a hearing under section 346-323.” Id.

When an immediate protection order is issued, an order to show cause hearing must be held within 72 hours, at which point the court may continue or modify orders as necessary if the adult still withholds consent and the court finds probable cause that they lack the capacity to consent. § 346-232.  These orders would remain in effect until the adjudicatory hearing can be scheduled.

Discretionary appointment of counsel

If certain findings are made, the court must appoint an attorney for the adult.  Haw. Rev. Stat. § 346-234(a) states in pertinent part, “The court shall appoint counsel for the vulnerable adult at any time where it finds that the vulnerable adult requires a separate legal advocate and is unable to afford private counsel (emphasis added).  Despite the word “shall” in the above excerpt, appointment of counsel is considered discretionary because the court would have to make a finding that counsel is required.

Discretionary appointment of guardian ad litem, but it is not clear whether GAL must be an attorney

As to the appointment of a GAL, Haw. Rev. Stat. § 346-234(a) provides:

In any case where the court has reason to believe that a vulnerable adult or any other party lacks the capacity to effectively make decisions concerning the party’s person, it may appoint a guardian ad litem to represent the interests of that party throughout the pendency of proceedings under this part.

However, neither the chapter governing the Department of Human Services, Haw. Rev. Stat. § 346-1, nor the part covering Adult Protective Services, § 346-222, provide a definition for “Guardian ad litem”, so it is not clear whether the GAL must be an attorney.

Regarding payment for the guardian ad litem or counsel, the adult can be made to pay the guardian ad litem fees “if that party has sufficient financial resources… The court may also order the appropriate parties to pay or reimburse reasonable costs and fees of the guardian ad litem and counsel appointed for the vulnerable adult.” Id. at (b).