Right to counsel

Pursuant to Ohio Rev. Code Ann. § 5101.66, protective services may be provided to adults with capacity if the adult consents: “Any person who requests or consents to receive protective services shall receive such services only after an investigation and determination of a need for protective services. … If the person withdraws consent, the protective services shall be terminated.” 

However, if the adult is incapacitated and therefore unable to consent, the department may petition the court for the provision of services on an involuntary basis per Section 5101.68.  Notice of the petition and hearing must be served personally on the adult at least five days before the hearing date. Ohio Rev. Code Ann. § 5101.681.  In the notice, “[t]he adult shall be informed of the right to counsel and the right to appointed counsel if the adult is indigent and if appointed counsel is requested.” Id. See also § 5101.682(A) (“The adult shall be represented by counsel unless the right to counsel is knowingly waived. If the adult is indigent, the court shall appoint counsel to represent the adult. If the court determines that the adult lacks the capacity to waive the right to counsel, the court shall appoint counsel to represent the adult’s interests.”).

But if an emergency exists, the adult is incapacitated, and “[n]o person authorized by law or court order to give consent for the adult is available or willing to consent to emergency services”, the court may issue an order authorizing the provision of services on an emergency basis, see Ohio Rev. Code Ann. § 5101.70(D), including ex parte (without advance notice to the adult). See § 5101.701.  An emergency order can last for a period of up to 14 days, but renewal may be sought if needed. § 5101.70(E)(3).  Services may be continued until a hearing on the renewal can be held pursuant to section 5101.68, at which point the right to counsel would presumably attach. Id. at (F).

Similarly, emergency ex parte orders are temporary in nature and “shall be in effect for not longer than twenty-four hours, except that if the day following the day on which the order is issued is not a working day, the order shall remain in effect until the next working day.” Ohio Rev. Code Ann. § 5101.70.  Within the 24-hour period, a petition must be filed in accordance with Section 5101.70.

Because it does not appear that the right to counsel attaches upon issuance of an emergency or ex parte order, the right to counsel is classified as “qualified.”