Right to counsel

Proceedings to appoint a guardian, guardian ad litem, or conservator for an allegedly disabled individual (who is not a minor) automatically trigger the appointment of counsel to represent that person. See Mo. Stat. §§ 475.075, 475.062 (providing for equivalent appointment of counsel in proceedings to appoint a conservator for allegedly disabled person’s estate).  Mo. Stat. § 475.083(6) extends the right to appointed counsel to termination of guardianships filed without the joinder of the guardian, while § 475.082(4) specifies, “If there is an indication that the incapacity or disability of the ward or protectee has ceased, the court shall appoint an attorney to file on behalf of the ward or protectee a petition for termination of the guardianship or conservatorship or for restoration.”

In In re Link, 713 S.W.2d 487 (Mo. 1986), the court addressed the question of an appointed attorney’s role in guardianship proceedings:

Section 475.075 strikes a balance between the alleged incompetent’s rights and interests by requiring the court to appoint an attorney to represent the alleged incompetent immediately upon the filing of the petition for appointment of a guardian. The appointed attorney is required to meet with the individual and make an initial determination of the client’s ability to understand and assist in the advancement of his or her interests. If the attorney concludes that the client is capable of understanding the matter in question, the attorney shall obtain from the client “all possible aid.” § 475.075.3.

We interpret this language as requiring that, to the extent an affected individual appropriately understands what is at stake and expresses a desire to waive or exercise a particular right, that desire must be honored, even if counsel disagrees with the wisdom of the choice. Both the statute and the constitution grant the individual the right to be present at the hearing. The right to be present at the hearing necessarily includes the right to participate therein to the extent of the individual’s ability. Suzuki, supra at 1129. Moreover, the purpose of the statutory and due process requirement of the appointment of counsel is to protect the rights and interests of the alleged incompetent. To accomplish this task it is essential that appointed counsel act as an advocate for the individual. Quesnall, supra at 576; Lessard, supra at 1097; Lynch, supra at 389; Lazaro, supra at 126; see also Perlin and Sadoff, supra; Task Panel, supra; Comment, supra; D. Herman, supra. The right to counsel becomes a mere formality, and does not meet the constitutional and statutory guarantee absent affirmative efforts to protect the individual’s fundamental rights through investigation and submission of all relevant defenses or arguments. In addition, the implied authority of an attorney is limited to waiver of procedural or remedial matters. Southwestern Bell Telephone Company v. Roussin, 534 S.W.2d 273 (Mo. App. 1976); Robinson v. DeWeese, 379 S.W.2d 831 (Mo. App. 1964). Unless expressly authorized, counsel does not have the power to waive a substantial right of a client who understands the nature of the action in which he is involved. Robinson, supra; Bommarito v. Southern Canning Company, 208 F.2d 56 (8th Cir. 1953); see also Quesnall, supra at 577.