Right to counsel

The General Provisions part of the guardianship code provides that a court may appoint counsel for a child in any guardianship or conservatorship proceeding, while the part governing conservatorships indicates that counsel is required in conservatorship matters where the individual is unrepresented.  

Because appointment in guardianship matters is merely discretionary, the right to counsel is classified as qualified.

Guardianship Cases

Discretionary appointment

A statute provides that the court may appoint counsel for minors in any guardianship or conservatorship matter. See Cal. Prob. Code § 1470(a).  The law provides:

The court may appoint private legal counsel for a ward, a proposed ward, a conservatee, or a proposed conservatee in any proceeding under this division if the court determines the person is not otherwise represented by legal counsel and that the appointment would be helpful to the resolution of the matter or is necessary to protect the person’s interests.

Cal. Prob. Code § 1470(a); see also Cal. Prob. Code § 1459.5(a) (providing that the Indian Child Welfare Act, 25 U.S.C. Sec. 1901 et seq., applies in certain guardianship and conservatorship matters concerning Indian children, which would also function to provide discretionary appointment for the Indian child under 25 U.S.C. Sec. 1912[b]).

Denial of counsel under this statute is subject to a prejudicial abuse of discretion standard on appeal

If the trial court fails to appoint counsel for a minor under the discretionary statute, the case will be reversed on appeal only if the denial resulted in prejudice. See e.g., Conservatorship of Scharles, 285 Cal. Rptr. 325 (Cal. Ct. App. 1991) [citing Mission Imports, Inc. v. Superior Court, 647 P.2d 1075, 1081 (Cal. 1982)].

Payment of counsel

Once the matter is concluded, “the court shall… fix a reasonable sum for comopensation and expenses of counsel.” Id. at (b).  Where counsel is appointed for a minor, the court may order the minor’s parent or parents, or the minor’s estate, to pay for counsel. Id. at (c).  But if the parents or minor’s estate is “financially unable to pay all or a portion of the cost of counsel appointed”, the county shall pay. Id.  Parents are afforded “notice and an opportunity to be heard” before the court enters an order requiring payment. Id. at (d).

Conservatorships: Right to counsel

In conservatorship matters, however, appointment is mandatory if the individual is unrepresented.  Section 1471 states: 

(a) If a conservatee, proposed conservatee, or person alleged to lack legal capacity is not represented by legal counsel and does not plan to retain counsel, whether or not that person lacks or appears to lack legal capacity, the court shall, at or before the time of the hearing, appoint the public defender or private counsel to represent the person in the following proceedings under this division:

(1) A proceeding to establish or transfer a conservatorship or to appoint a proposed conservator.
(2) A proceeding to terminate the conservatorship.
(3) A proceeding to remove the conservator.
(4) A proceeding for a court order affecting the legal capacity of the conservatee.
(5) A proceeding to obtain an order authorizing removal of a temporary conservatee from the temporary conservatee’s place of residence.

Cal. Prob. Code § 1471(a); see also § 1861.5 (providing that, if the court “recei[ves] a communication from the conservatee that the conservatee wishes to terminate the conservatorship, a court shall appoint counsel for the conservatee and set a hearing for the termination of the conservatorship” if no hearing on termination has been held in the past 12 months or if “[t]he court believes there is good cause to set a hearing”).  The right to counsel applies in matters related to establishing a limited conservatorship as well. Cal. Prob. Code § 1471(b). 

The statute goes on to specify that the proper role of the attorney “is that of a zealous, independent advocate representing the wishes of their client…” Id. at (d).  Finally, the right to counsel does extend to appeals. Id. at (e).