"RTC 50-state summary - Guardianship/Conservatorship of Adults - Protected Person" State,Description,"Establishes right to counsel",Qualified Alabama,"Upon the filing of a guardianship petition the court shall appoint an attorney for the allegedly incapacitated person unless the person is already represented by counsel Ala Code 26-2A-102 b The role of the attorney is that of a guardian ad litem Id After guardianship has been granted the protected person is entitled to an attorney in matters related to extension and termination of the guardianship Before appointing a successor guardian or ordering that a ward s incapacity has terminated the court shall follow the same procedures to safeguard the rights of the ward that apply to a petition for appointment of a guardian Ala Code 26-2A-110 c As to an adult subject to a petition for conservatorship or other protective order the law appears to require appointed counsel While Ala Code 26-2A-135 d states that such person is only entitled to be represented by counsel at the person s expense 26-2A-135 b states Unless the person to be protected has chosen counsel the court shall appoint an attorney to represent the person who may be granted the powers and duties of a guardian ad litem The phrase who may be granted the powers and duties of a guardian ad litem appears to be a reference to the appropriate role of the attorney appointed to represent the subject of the conservatorship not a reference to an attorney for the proposed conservator This is made clearer by looking at 26-2A-135 a An attorney appointed by the court to represent a minor may be granted the powers and duties of a guardian ad litem Admittedly 26-2A-135 b would be clearer if a comma were added Unless the person to be protected has chosen counsel the court shall appoint an attorney to represent the person who may be granted the powers and duties of a guardian ad litem And even with this clarification it is unclear how to reconcile these two apparently conflicting provisions",yes,Yes Alaska,"Guardianship establishment The respondent has the right to counsel in the guardianship proceedings pursuant to Alaska Stat 13 26 226 b and i f the respondent is financially unable to employ an attorney the court shall appoint the office of public advocacy AS 44 21 400 under AS 13 26 291 to represent the respondent in the proceedings Id But the respondent is responsible for their attorneys fees unless either of the following conditions apply The court finds that this would result in financial hardship or in the respondent becoming dependent upon a government agency or a private person or agency in which case the state pays all or part of the costs Alaska Stat 13 26 291 b - c or If the petitioner files a case that is malicious frivolous or without just case the petitioner may be responsible for all or part of the cost for respondent s attorney Alaska Stat 13 26 291 d see also Alaska Stat 13 26 201 a guardianship for an incapacitated person shall be used only as is necessary to promote and protect the wellbeing of the person Guardianship termination modification and removal or resignation of guardian Finally the protected person is presumably entitled to an attorney in hearings related to removal of the guardian change of the guardian s responsibilities resignation of the guardian or change or termination of the guardianship Before taking any of these actions Alaska Stat 13 26 286 c requires the court following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian and applying the least restrictive alternative necessary to meet the needs of the ward after consideration of alternatives to guardianship services may send a visitor 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 But it is unclear whether the same procedures language applies to just the visitor s observation or the whole proceeding And because this provision incorporates the same procedures as apply to a petition for appointment of a guardian the court would likely consider the financial ability of the protected person in deciding whether to appoint and may require the protected person to pay attorneys fees unless this would result in financial hardship Conservatorship establishment In conservatorship matters the respondent has a right to appointed counsel as well Alaska Stat 13 26 430 b Unlike the right to counsel in guardianship proceedings under Alaska Stat 13 26 226 there is no mention of an indigency requirement for the right to counsel in conservatorships",yes,Yes Arizona,"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",yes,Yes Arkansas,"A C A 16-87-306 states The public defender in each judicial district shall have the following duties 1 A To defend indigents within the district as determined by the circuit municipal or juvenile courts in the district in all i Felony misdemeanor juvenile guardianship and mental health cases This suggests that there might be a right to appoined counsel in all cases involving guardianship However A C A 28-65-213 a 1 states that in guardianship cases the respondent has the right to be represented by counsel but it does not mention appointment if indigent",yes,Yes Arkansas,"In Kuelbs v Hill 379 S W 3d 47 Ark Ct App 2010 the Arkansas Supreme Court approved the trial court s inherent authority to appoint counsel in a guardianship case in order to command an orderly efficient and effective administration of justice",discretionary,No California,"As the result of a law enacted in 2022 the court is required to appoint counsel for a conservatee upon receiving a communication from the conservatee that they wish to terminate the conservatorship and the court shall schedule a hearing on the matter if either of the two following conditions are met a There has not been a hearing for the termination of the conservatorship within the 12 months preceding the communication from the conservatee b The court believes there is good cause to set a hearing for the termination of the conservatorship",yes,No California,"As the result of a 2021 law California conservatorships no longer require a protected person to request counsel in order for counsel to be appointed Bloomberg Law has more For guardianships conservatorships Cal Health Safety Code 416 95 provides a right to automatic appointment of counsel for an adult developmentally disabled person for whom guardianship or conservatorship is sought by the Director of Developmental Services It is also required when a limited conservatorship is sought of a developmentally disabled person Cal Prob Code 1471 c 1801 d in any conservatorship where a conservatee or proposed conservatee has not retained legal counsel and does not plan to retain legal counsel whether or not that person lacks or appears to lack legal capacity Cal Prob Code 1471 b in proceedings involving a person with a major neurocognitive disorder Cal Prob Code 2356 5 f 1 and in full conservatorship proceedings where the judge determines that 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 Welf Inst Code 5465 in proceeding to establish conservatorship due to serious mental illness or substance abuse disorders authorized in certain counties If the conservatee or proposed conservatee is not represented by counsel the court shall appoint the public defender for the conservatee or proposed conservatee within five days after the date of the petition at the county s or city and county s expense A hearing or trial shall not occur under this chapter unless the conservatee or proposed conservatee is represented by counsel 5365 for conservatorships of gravely disabled persons 1 A hearing shall be held on all petitions under this chapter within 30 days of the date of the petition The court shall appoint the public defender or other attorney for the conservatee or proposed conservatee within five days after the date of the petition If court-ordered medical treatment is sought for a ward or conservatee then Upon the filing of the petition unless an attorney is already appointed the court shall appoint the public defender or private counsel under Section 1471 to consult with and represent the ward or conservatee at the hearing on the petition and if that appointment is made Section 1472 applies Cal Prob Code 2357 See also Cal Welf Inst Code 5350 5 if court refers conservatee for assessment to determine if the conservatee has a treatable mental illness including whether the conservatee is gravely disabled or impaired by chronic alcoholism and is unwilling to accept or is incapable of accepting treatment voluntarily then court must appoint counsel for conservatee if indigent 5365 for conservatorships of gravely disabled persons A hearing shall be held on all petitions under this chapter within 30 days of the date of the petition The court shall appoint the public defender or other attorney for the conservatee or proposed conservatee within five days after the date of the petition",yes,No Colorado,"Establishment For establishment of a guardianship or conservatorship The court shall appoint a lawyer to represent the respondent in the proceeding if a Requested by the respondent b Recommended by the visitor or c The court determines that the respondent needs representation Colo Rev Stat 15-14-305 2 as to guardianships and 15-14-406 2 as to conservatorships Termination Both sections require e xcept as otherwise ordered by the court for good cause that the court follow the same procedures to safeguard the rights of the protected person that apply to a petition for guardianship or conservatorship See Colo Stat 15-14-318 3 and 15-14-431 4 Accordingly the protected person likely has a right to appointed counsel See also Colo Stat 15-14-319 15-14-434 right to counsel at expense of ward s estate for post-guardianship or conservatorship proceedings unless ward lacks capacity to provide informed consent to representation",yes,Yes Connecticut,"Conservatorships Persons subject to conservatorship proceedings are entitled to have an attorney represent them The statute states A respondent as defined in section 45a-644 or a conserved person as defined in section 45a-644 who is subject to proceedings subsequent to the appointment of a conservator pursuant to an application for involuntary representation shall have the right to be represented by an attorney of the respondent s or conserved person s choosing at the expense of the respondent or conserved person or if the respondent or conserved person is indigent within the payment guidelines of the Court of Probate Conn Gen Stat Ann 45a-649a a see also Conn Gen Stat Ann 45a-654 c Upon receipt of a petition for the appointment of a temporary conservator the court shall appoint counsel for the respondent Should the court find the person is indigent or otherwise unable to pay for representation by an attorney the court shall appoint an attorney for the respondent or conserved person unless the respondent or conserved person refuses to be represented by an attorney and the court finds that the respondent or conserved person understands the nature of the refusal Id 45a-649a b see also Id 45a-660 c for review of regular conservatorships The court shall review each conservatorship not later than one year after the conservatorship was ordered and not less than every three years after such initial one-year review If the conserved person is unable to request or obtain an attorney the court shall appoint an attorney The statutory law continues on to address the issue of compensation If the respondent or conserved person is indigent an attorney appointed under this section shall be paid a reasonable rate of compensation Rates of compensation for such appointed attorneys shall be established by the office of the Probate Court Administrator Such compensation shall be paid from funds appropriated to the Judicial Department If funds have not been included in the budget of the Judicial Department for such purposes such compensation shall be paid from the Probate Court Administration Fund Id 45a-649a e Guardianship of the Person For guardianships of those with an intellectual disability which appear to be the only kind of guardianship proceedings on the books in Connecticut Conn Gen Stat Ann 45a-673 and 45a-681 a 6 provide a right to counsel for indigent respondents in guardianship establishment and review proceedings respectively Per 45a-673 u nless the respondent is represented by counsel the court shall immediately appoint counsel for the respondent If the respondent cannot afford counsel the attorney s compensation will be paid either from Judicial Department funds or from the Probate Court Administration Fund Id Regarding guardianship review proceedings the statute states If the protected person is unable to request or obtain an attorney the court shall appoint an attorney for the protected person Id 45a-681 a 6 A similar provision about compensation is found here as well stating that if the person is unable to pay for an attorney compensation will be paid by either Judicial or Probate Court Administration Funds Id In Gross v Rell the court considered the proper role of counsel appointed pursuant to the guardianship statute Under rule 1 14 b a lawyer may seek the appointment of a guardian or take other protective action with respect to a client but only when the lawyer reasonably believes that the client cannot adequately act in the client s own interest Rules of Professional Conduct 2005 1 14 b see also Office of the Probate Court Administrator supra p 2 attorney should seek appointment of guardian for impaired client only in extraordinary situations because the effect will be that no one in the courtroom will be expressing the respondent s strongly held view Ordinarily if a client is opposed to the conservatorship application the attorney must be also Office of the Probate Court Administrator supra p 2 see also In re J C T 176 P 3d 726 735 Colo 2007 American Bar Association has taken position that a lawyer should not seek to have himself appointed guardian except in the most exigent of circumstances internal quotation marks omitted P Tremblay supra 1987 Utah L Rev at 552 T he legal profession seeks to adhere to the underlying deology of informed consent while permitting exceptions to that doctrine This is especially true in commitment-type cases that stress the client s right to decide V Gottlich The Role of the Attorney for the Defendant in Adult Guardianship Cases An Advocate s Perspective 7 Md J Contemp Legal Issues 191 201-202 1996 under rule 1 14 even if an attorney thinks the guardianship would be in the client s best interest the attorney whose client opposes guardianship is obligated to defend against the guardianship petition We recognize that the commentary to rule 1 14 of the Rules of Professional Conduct 2005 provides If the person has no guardian or legal representative the lawyer often must act as de facto guardian This commentary has been criticized however on the ground that t o the extent it permits ad hoc decisionmaking by the lawyer without either consent or court approval the r ule reincorporates the tension between the ethical requirement that a lawyer must obtain the client s informed consent for any decision and the reality that an incapacitated client may not be able to grant consent that has received so much attention in the medical field but it offers no meaningful assistance regarding how to resolve the tension in practice In a technical but perhaps significant way it also violates the law by authorizing action in the absence of direct or proxy consent P Tremblay supra 1987 Utah L Rev at 546 In addition the commentary is problematic because t he common-law presumption of competence can easily be construed to mean that all persons are legally competent to make decisions until the presumption has been overcome in a judicial proceeding Any third party usurpation of authority without judicial approval or prior consent violates this principle Citations omitted Id 546 n 130 In light of these concerns it is reasonable to conclude that like the commentary recognizing that an attorney may be required to seek the appointment of a guardian the commentary recognizing that an attorney may have to act as the client s de facto guardian applies only in exceptional cases where it is inescapably clear that the client is unable to make reasonable and informed decisions and immediate action is required to protect an important interest of the client See In re J C T supra 176 P 3d 735 although commentary to rule 1 14 stated in 2005 that the lawyer must often act as de facto guardian American Bar Association has taken position that a lawyer should not act as guardian except in the most exigent of circumstances that is where immediate and irreparable harm will result from the slightest delay internal quotation marks omitted On the basis of the foregoing we conclude that with respect to attorneys for respondents in conservatorship proceedings the primary function of such attorneys under rule 1 14 of the Rules of Professional Conduct is to advocate for the client s express wishes Although an attorney might be required in an exceptional case to act as the client s de facto guardian that is not the attorney s primary role 40 A 3d 240 258-259 Conn 2012",yes,No Delaware,"In adult guardianship proceedings Del Code Ann tit 12 3901 c specifies only that the person with the alleged disability is entitled to representation by counsel but there is no provision for appointment of counsel However Del Ch Ct R 176 a entitled attorney ad litem specifies that upon the filing of a petition for appointment of a guardian the Court shall appoint a member of the Delaware Bar to represent the adult person alleged to be disabled if such person is not otherwise represented by counsel The attorney serves in a best interests role and shall conduct a reasonable investigation into the allegations of the petition the fitness of the proposed guardian and all pertinent facts Id If a conflict of interest arises the court may but is not required to appoint a second attorney for the respondent If the attorney ad litem determines the wishes of the person alleged to be disabled diverge from his or her best interests the attorney ad litem shall advise the Court The Court may appoint a second attorney to represent the person with an alleged disability as if engaged by such person and may hold a hearing to determine whether a guardian should be appointed Id",yes,Yes Florida,"Upon a petition to determine whether a person is incapacitated a predecessor step to guardianship Fla Stat 744 331 2 provides that a When a court appoints an attorney for an alleged incapacitated person the court must appoint the office of criminal conflict and civil regional counsel or a private attorney as prescribed in s 27 511 6 A private attorney must be one who is included in the attorney registry compiled pursuant to s 27 40 Appointments of private attorneys must be made on a rotating basis taking into consideration conflicts arising under this chapter b The court shall appoint an attorney for each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court c Any attorney representing an alleged incapacitated person may not serve as guardian of the alleged incapacitated person or as counsel for the guardian of the alleged incapacitated person or the petitioner See also Fla Stat 744 3725 1 Before the court may grant authority to a guardian to exercise any of the rights specified in s 744 3215 4 the court must a ppoint an independent attorney to act on the incapacitated person s behalf and the attorney must have the opportunity to meet with the person and to present evidence and cross-examine witnesses at any hearing on the petition for authority to act Fla Stat 744 3031 1 requiring appointment of counsel for emergency temporary guardianship proceedings Fla Prob R 5 649 c Within 3 days after a petition has been filed the court shall appoint an attorney to represent a person with a developmental disability who is the subject of a petition to appoint a guardian advocate The person with a developmental disability may substitute his or her own attorney for the attorney appointed by the court Counsel is also provided for review of the guardianship if contested Fla Stat 744 464 2 e One of the Florida Court of Appeals has said that the failure to appoint counsel in such proceedings is fundamental error Martinez v Cramer 121 So 3d 580 583 Fla Dist Ct App 2013 citing In re Fey 624 So 2d 770 772 Fla Dist Ct App 1993 Additionally in Guardianship of Sanders v Chaplin 334 So 3d 723 Fla Dist Ct App 2022 an appellate court considering payment of attorney s fees for the appointed attorney refused to require that an appointed attorney prove the services were of benefit to the ward before granting attorney s fees disagreeing with the conclusion of Schlesinger v Jacob 240 So 3d 75 78 Fla Dist Ct App 2018 The Sanders court agreed with the concurrence in Schlesinger that attorneys are less likely to represent family members and interested parties concerned about how the ward is treated because they will not get paid and thus fewer claims by family members and interested parties will be brought to court The result is less oversight of the most vulnerable members of our community The court added that Without question it is necessary and of benefit to the ward for her attorney to review and ensure the accuracy of the inventory and guardianship paperwork to effectuate the process To declare that a court appointed attorney tasked with these legal responsibilities may only be compensated for legal services rendered if she found error or declared a necessary amendment is without logic",yes,No Georgia,"Those subjected to guardianship proceedings have a right to counsel in guardianship establishment proceedings per Ga Code Ann 29-4-11 c 1 D as well as in guardianship review proceedings under Ga Code Ann 29-4-42 a in review of guardianship The court shall appoint legal counsel for the ward and may in its discretion appoint a guardian ad litem and emergency guardianship matters See Ga Code Ann 29-4-15 c If the court determines that there is probable cause to believe that the proposed ward is in need of an emergency guardian the court shall 1 Immediately appoint legal counsel to represent the proposed ward at the emergency hearing Regarding conservatorships of adults notice to the proposed protected person shall i nform the proposed ward of the proposed ward s right to independent legal counsel and that the court shall appoint counsel within two days of service unless the proposed ward indicates that he or she has retained counsel within that time frame Ga Code Ann 29-5-11 c 1 D A protected person subject to a conservatorship also has the right to appointed counsel in certain matters related to modification of the conservatorship In any proceeding under this Code that would expand or increase the powers of the conservator or further restrict the rights of the ward the court shall appoint legal counsel for the ward In all other cases the court in its discretion may appoint legal counsel for the ward or a guardian ad litem or both Ga Code Ann 29-5-71 a The protected person also has the right to counsel in matters related to termination of the conservatorship per Ga Code Ann 29-5-72 a Upon the petition of any interested person including the ward or upon the court s own motion and upon a proper showing that the need for a conservatorship has ended the court may terminate the conservatorship and restore all personal and property rights to the ward Except for good cause shown the court shall order that notice of the petition be given in whatever form the court deems appropriate to the ward the conservator the ward s legal counsel and the ward s guardian if any The court shall appoint legal counsel for the ward and may in its discretion appoint a guardian ad litem",yes,No Hawaii,"Haw Rev Stat 560 5-305 b provides as to guardianship of the person matters The court shall appoint a lawyer to represent the respondent in the proceeding if 1 Requested by the respondent 2 Recommended by the kokua kanawai or 3 The court determines that the respondent needs representation Haw Rev Stat 560 5-406 b provides identical language for guardianship of property matters For guardianship review proceedings Haw Rev Stat 560 5-318 c provides that Except as otherwise ordered by the court for good cause the court before terminating a guardianship shall follow the same procedures to safeguard the rights of the ward that apply to a petition for guardianship Again the same language is mirrored in 560 5-431 which governs the termination of property-related guardianships This would suggest that the right to counsel would exist for guardianship termination proceedings Finally when a guardian is appointed on an emergency basis the court may appoint a lawyer to represent the respondent throughout the emergency guardianship Haw Rev Stat 560 5-312 a No similar provision providing counsel in the context of the emergency appointment of a guardianship of property was found",yes,Yes Idaho,"Generally There is a right to counsel in various types of guardianship situations although in some cases the attorney serves in an ad litem role Guardianship Establishment Under Idaho s Uniform Probate Code section titled Protection of Persons Under Disability and Their Property Guardians of Incapacitated Persons once a petition for a hearing on incapacity is filed and a date for hearing is set and unless the allegedly incapacitated person has counsel of his own choice the court shall appoint an attorney to represent him in the proceeding who shall have the powers and duties of a guardian ad litem Idaho Code Ann 15-5-303 b Respondents in guardianship proceedings filed based upon the person s developmental disability also have the right to counsel See Idaho Code Ann 66-404 3 requiring appointment of counsel upon filing of petition for guardianship of developmentally disabled person Guardianship Removal or Termination Idaho Code Ann 15-5-307 c specifies that Before removing 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 a visitor 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 It is unclear whether the following the same procedures language only applies to the visitor s observations or to the whole termination process Conservatorship Establishment Per 15-5-407 b the court may appoint an attorney ad litem for an adult person subject to a petition for appointment of a conservator or other protective order for reasons other than minority As to conservatorship respondents where the petition is filed due to a developmental disability appointment of counsel is mandatory Idaho Code Ann 66-404 3 Medical Treatment Context For persons who allegedly lack the capacity to make informed decisions about treatment due to their mental health the Idaho Code provides a right to counsel to indigent respondents that attaches upon the filing of a petition for the appointment of a guardian who will handle treatment decisions Idaho Code Ann 66-322 e The statute also establishes that a n opportunity to be represented by counsel shall be afforded to every proposed patient and if neither the proposed patient nor others provide counsel the court shall appoint counsel in accordance with chapter 8 title 19 Idaho Code Idaho Code Ann 66-322 f",yes,Yes Illinois,"Prior to a hearing on a petition for adjudication of disability and for the appointment of a guardian of the person guardian of the estate or both t he court 1 may appoint counsel for the respondent if the court finds that the interests of the respondent will be best served by the appointment and 2 shall appoint counsel upon respondent s request or if the respondent takes a position adverse to that of the guardian ad litem The respondent shall be permitted to obtain the appointment of counsel either at the hearing or by any written or oral request communicated to the court prior to the hearing The summons shall inform the respondent of this right to obtain appointed counsel The court may allow counsel for the respondent reasonable compensation 755 Ill Comp Stat Ann 5 11a- 10 b West With regard to a hearing on a petition to terminate the adjudication of disability of a ward revoke the letters of guardianship or modify the duties of the guardian The court 1 may appoint counsel for the ward if the court finds that the interests of the ward will be best served by the appointment and 2 shall appoint counsel upon the ward s request or if the respondent takes a position adverse to that of the guardian ad litem 755 Ill Comp Stat Ann 5 11a-21 a If the ward is unable to pay the fee of the guardian ad litem or appointed counsel or both the court shall enter in an order upon the State to pay from funds appropriated by the General Assembly for that purpose all such fees or such amounts as the ward is unable to pay 5 11a-21 b For information about the right to counsel where a guardian seeks court authority to order sterilization of the protected person please see the major development for Illinois Legislation Sterilization",yes,Yes Indiana,"For guardianship proceedings Ind Code 29-3-5-1 c specifies that u nless an alleged incapacitated person is already represented by counsel the court may appoint an attorney to represent the incapacitated person Ind Code 29-3-8 5-1 states A court in a proceeding under this article may appoint a volunteer advocates for seniors program or a volunteer advocates for incapacitated adults program while Ind Code 29-3-8 5-7 adds The court may appoint an attorney to represent a volunteer advocate for seniors and incapacitated adults In 2023 Indiana enacted SB 287 creating a procedure for persons to petition for disclosure of a respondent s confidential medical records for the purpose of seeking a protective order related to an alleged incapacitated person s finances property or business interests See Ind Code 29-3-4-1 5 Under the statute if the petition complies with the statutory requirements the court shall issue an order scheduling a hearing date in which the court shall a ppoint an attorney or guardian ad litem to represent the alleged incapacitated person if the verified petition does not identify an attorney that represents the individual Ind Code 29-3-4-1 5 d",discretionary,No Iowa,"Right to client-directed counsel in plenary guardianship and conservatorship establishment matters In guardianship and conservatorship establishment proceedings an adult respondent has the right to an attorney and the court shall appoint counsel if the respondent is indigent or incapable of requesting counsel See Iowa Code 633 561 1 3 Iowa Code 633 561 states in pertinent part 1 In a proceeding for the appointment of a guardian or conservator for an adult or a conservator for a minor a If the respondent is an adult and is not the petitioner the respondent is entitled to representation by an attorney Upon the filing of the petition the court shall appoint an attorney to represent the respondent set a hearing on the petition and provide for notice of the appointment of counsel and the date for hearing If the respondent is indigent then the county shall pay the costs for appointed counsel See Iowa Code 633 561 3 In Estate of Leonard ex rel Palmer v Swift the Iowa Supreme Court described at length the role of an attorney appointed pursuant to this statute 656 N W 2d 132 139 Iowa 2003 Specifically the court expounded that a counsel is not a guardian ad litem but rather must advocate for the wishes of the ward and b counsel unlike a guardian ad litem continues representation through any conservatorship proceedings Id In 2019 the client-directed role of counsel was codified through enactment of HF 610 at Iowa Code 633 561 4 b An attorney appointed pursuant to this section shall Advocate for the wishes of the respondent to the extent those wishes are reasonably ascertainable If the respondent s wishes are not reasonably ascertainable the attorney shall advocate for the least restrictive alternative consistent with the respondent s best interests Failure to appoint is reversible error In In re Guardianship Conservatorship of Robert Kenneth Fagan the court stated This court has recognized counsel s failure to act as counsel for the proposed ward constitutes reversible error No 17-0785 2017 WL 5185449 Iowa Ct App Nov 8 2017 unpublished relying on In re Guardianship of Griesinger 804 N W 2d 527 530 Iowa Ct App 2011 Additionally the Fagan court noted that it was required to reach the issue sua sponte without regard to whether the claim was preserved or presented for appellate review This was true because Fagan s counsel operated under an actual conflict of interest in representing Fagan in the district court where counsel acted as Fagan s guardian ad litem recommending the court establish guardianship contrary to Fagan s desire to live independently and manage his own affairs Id at 2 Discretionary appointment for standby petitions Additionally i f the respondent is an adult under a standby petition appointment of counsel is discretionary In such matters Section 633 561 1 b provides T he court shall determine whether under the circumstances of the case the respondent is entitled to representation The determination regarding representation may be made with or without notice to the respondent as the court deems necessary If the court determines that the respondent is entitled to representation the court shall appoint an attorney to represent the respondent After making the determination regarding representation the court shall set a hearing on the petition and provide for notice on the determination regarding representation and the date for hearing The statute does not explain how the court is supposed to determine whether the respondent is entitled to representation Temporary guardianship conservatorship and termination or modification The statute does not explicitly state that the right to counsel applies in such matters although the statute does require the respondent s attorney to inform them of their rights to petition for modification or termination of the guardianship or conservatorship in the event that an order of appointment is entered See 633 561 5 b And paragraph 6 seemingly provides for discretionary appointment in any proceedings in a guardianship or conservatorship where the court determines that it would be in the respondent s best interests to have legal representation",yes,No Kansas,"Mandatory appointment of counsel Guardianship and conservatorship establishment sterilization and involuntary admission to facility The Kansas Probate Code requires courts to appoint counsel to represent the subject of a petition to appoint a guardian or conservator Kan Stat Ann 59-3063 a 3 Counsel is also required where the guardian seeks court authority to admit the protected or proposed protected person to a treatment facility 1 Kan Stat Ann 59-3077 c 3 or seeks court authority to consent to sterilization of the protected person on their behalf Kan Stat Ann 59-3075 e 5 Discretionary appointment of counsel Ancillary matters The court has discretion to appoint counsel to represent the protected or proposed protected person in connection with certain related proceedings including establishing an irrevocable trust on the person s behalf Kan Stat Ann 59-3080 d claims against the conservatee s estate 59-3082 court review of guardian s report 59-3084 b court review of conservator s report 59-3085 b allowance and settlement on conservator s accounting 59-3086 b modification of co-guardian or co-conservatorship orders 59-3087 b resignation removal or appointment of successor guardian or conservator 59-3088 b and hearings on termination of a guardianship or conservatorship 59-3091 f 1 For the guardian In addition the court may appoint counsel for the guardian in matters related to modification of the guardian s powers Kan Stat Ann 59-3075 a 1 ------------------------------- 1 The statute provides that a treatment facility is defined as the Kansas neurological institute Larned state hospital Osawatomie state hospital Parsons state hospital and training center the Rainbow mental health facility any intermediate care facility for people with intellectual disability any psychiatric hospital licensed pursuant to K S A 39-2001 et seq and amendments thereto and any other facility for mentally ill persons or people with intellectual or developmental disabilities licensed pursuant to K S A 39-2001 et seq and amendments thereto if the proposed ward or ward is to be admitted as an inpatient or resident of that facility Kan Stat Ann 59-3077 h",yes,No Kentucky,"Generally Counsel must be appointed for unrepresented respondents in both temporary and permanent guardianship conservatorship establishment matters whether full or partial disability is sought It is not clear whether the right to counsel extends to termination and modification proceedings In addition there is a specific section of the code that governs guardianships of certain veterans that does not mention a right to counsel Accordingly the right to counsel is classified as qualified Guardianship and conservatorship Plenary establishment In guardianship and conservatorship establishment proceedings 1 Unless an appearance has been entered on behalf of the respondent the court shall appoint counsel for the respondent within one 1 week of the filing of a petition for determination of disability under KRS 387 500 to 387 770 2 Appointed counsel shall be entitled to compensation for services If counsel is appointed for a poor person as defined in KRS 453 190 the court shall prescribe reasonable compensation to be paid by the county in which the proceeding is held in accordance with the complexity of the issues the time involved and other relevant considerations except that appointed counsel shall not be compensated at a rate higher than sixty dollars 60 an hour for time spent in court and no higher than forty dollars 40 an hour for time spent out of court If the petition is found to be frivolous or not brought in good faith counsel fees shall be charged to the petitioner Ky Rev Stat Ann 387 560 1 Temporary or emergency establishment The right to counsel also applies in matters related to establishing a temporary guardianship or conservatorship on an emergency basis Ky Rev Stat Ann 387 740 3 a states The court shall review any and all petitions for an emergency appointment of a limited guardian or limited conservator without delay and not more than one 1 week after the petition is filed Within one 1 week of the filing of a petition pursuant to this section the court shall conduct a hearing at which the respondent shall be entitled to counsel Termination and modification matters In matters related to t ermination or modification of an order of partial disability or disability as well as in petitions for r emoval and or replacement and for renewal of the appointment of a limited guardian guardian limited conservator or conservator the statute mentions an entitlement to counsel but it does not specifically mention appointment of counsel so it is unclear whether there is a right to appointed counsel See Ky Rev Stat Ann 387 620 4 stating that Within thirty 30 days after the filing of a petition the court shall conduct a hearing at which the ward shall be entitled to counsel but not mentioning appointment of counsel Guardianship of certain veterans Kentucky has separate guardianship proceedings for mentally disabled beneficiar ies of the Veterans Affairs such that a person can become eligible for payment of benefits from the VA but there is no mention of providing counsel for such proceedings See Ky Rev Stat Ann 388 190 et seq",yes,Yes Louisiana,"A series of dated cases suggest counsel is required in guardianship matters though the basis for the holdings is not clear In Gore v Barrow the court held that a petition to find someone mentally incapacitated i e an interdiction or guardianship as it would be called in other states is invalid where the defendant is without counsel and or where no answer is filed on their behalf 68 So 625 La 1915 The court did not provide a specific constitutional basis for its holding For other similar cases see Interdiction of Grevenig 115 So 133 135 La 1927 In suits for interdiction where the interdict has been cited and served with the petition and is not otherwise represented by counsel it is the duty of the court to appoint an attorney ad hoc to defend the suit Vance v Ellerbe 90 So 735 740 La 1922 The court must appoint an attorney to defend the alleged incapacitated person if one be not otherwise provided else the judgment of interdiction is without effect",yes,No Louisiana,"The court must appoint counsel for unrepresented adults who are the subject of a guardianship interdiction petition The right to appointed counsel applies to both the establishment and review proceedings La Code Civ Proc Ann art 4544 A for establishment If the defendant makes no timely appearance through an attorney the petitioner shall apply for an order appointing an attorney to represent the defendant Pursuant to such a motion or on its own motion the court shall appoint an attorney to represent the defendant The right to counsel may also attach in modification and termination matters because La Code Civ Proc Ann 4554 states Except for good cause the court shall follow substantially the same procedures that apply to an original petition for interdiction before it modifies or terminates an interdiction judgment And the civil procedure codes provides that a final judgment shall be annulled if it is rendered 1 Against an incompetent person not represented as required by law See La Code Civ Proc Ann art 2002 A However it is not clear whether a modification order would be considered final nor whether Section 4554 requires representation The right to counsel is therefore classified as qualified since the appointment seemingly may or may not apply in subsequent proceedings",yes,Yes Maine,"Generally There is a right to counsel for adults in plenary guardianship and conservatorship matters upon request or if the adult contests at least for establishment modification removal and termination There is no appointment in emergency guardianship and conservatorship proceedings Because the right to counsel does not extend to emergency matters the right to counsel is classified as qualified Guardianship and conservatorship Establishment Respondents to plenary guardianship and conservatorship petitions have the right to counsel if A Requested by the respondent B Recommended by the visitor C The court determines that the respondent needs representation or D It comes to the court s attention that the respondent wishes to contest any aspect of the proceeding or to seek any limitation on the proposed guardian s powers Me Rev Stat Ann tit 18-C 5-305 1 as to guardianship petitions 5-406 1 as to conservatorships The attorney does serve in a client-directed role as both the guardianship and conservatorship parts provide that the attorney shall A Make reasonable efforts to ascertain the respondent s wishes B Advocate for the respondent s wishes to the extent reasonably ascertainable and C If the respondent s wishes are not reasonably ascertainable advocate for the result that is the least restrictive option in type duration and scope consistent with the respondent s interests Me Rev Stat Ann tit 18-C 5-305 2 5-406 2 Removal termination and modification An adult who seeks to remove their guardian or conservator and appoint a successor or who seeks to terminate or modify the guardianship or conservatorship is entitled to counsel under the same conditions as specified in sections 5-305 and 5-406 See Me Rev Stat Ann tit 18-C 5-318 4 guardianship removal 5-430 4 conservatorship removal 5-319 7 guardianship termination or modification and 5-431 9 conservatorship termination or modification As to attorney s fees for a removal termination and modification matters The court shall award reasonable attorney s fees to the attorney for the adult as provided in section 5-119 Me Rev Stat Ann tit 18-C 5-318 4 5-430 4 5-319 7 and 5-431 9 Temporary substitute guardian or conservator A court may appoint a temporary guardian or conervator to serve for a period not longer than 6 months if a removal proceeding is pending or if t he court finds an existing guardian or conservator is not effectively performing their duties and the welfare of the individual requires immediate action Me Rev Stat Ann tit 18-C 5-124 1 - 2 Although no separate right to counsel is provided for in this section the right may attach in a pending removal proceeding as discussed above per Me Rev Stat Ann tit 18-C 5-318 4 guardianship removal 5-430 4 conservatorship removal Emergency guardianship and conservatorship It appears that Maine does not provide the right to counsel in emergency guardianship and conservatorship proceedings See Me Rev Stat Ann tit 18-C 5-312 and 5-413 The Comment to both sections provides Contrary to the Uniform Act the sections do not provide for the automatic appointment of an attorney for the respondent Other protective arrangements Where a less restrictive alternative to guardianship or conservatorship would be appropriate other protective arrangements may be sought See 5-502 and 5-503 bases for protective arrangements instead of guardianship or conservatorship The right to counsel may attach in these matters per Me Rev Stat Ann tit 18-C 5-507 1 which incorporates the same factors as Sections 5-305 and 5-406 respondent requests counsel visitor recommends counsel court determines counsel is needed or respondent contests",yes,Yes Maryland,"Generally The court must appoint counsel in various types of guardianship and conservatorship proceedings Guardianship of the Person Private In a case regarding the appointment of a guardian for an alleged disabled person the court shall appoint an attorney to represent the alleged disabled person unless the person has counsel of his or her own Md Code Ann Est Trusts 13-705 d see also Md Rule 10-106 a 2 The State shall pay for reasonable attorney s fees for an indigent alleged disabled person in such a case otherwise the fee shall be paid out of the estate Id Emergency Protective Services Matters In a hearing on a petition for an emergency order for protective services t he person has the right to counsel whether or not they are present at the hearing Md Code Ann Est Trusts 13-709 f 1 ii If the person is indigent or lacks the capacity to waive their right to counsel the court shall appoint counsel Id If they are indigent the State shall pay a reasonable attorney s fee Id If the local department of social services is responsible for paying the court-appointed attorney then the court shall appoint an attorney who has contracted with the Department of Human Services to provide those services unless this is not in the person s best interests Md Code Ann Est Trusts 13-709 f 2 Similarly if an attorney was previously appointed the court shall strike that attorney s appearance and appoint such a contracted attorney unless this is not in the person s best interests Id Other matters Discretionary appointment Md Rule 10-106 d 4 provides as to the continuing appointment of counsel in subsequent matters Nothing in this section precludes a court from appointing reappointing or continuing the appointment of an attorney for a minor or disabled person after a guardianship has been established if the court finds that such appointment or continuation is in the best interest of the minor or disabled person An order of appointment after a guardianship has been established shall state the scope of the representation and may include specific duties the attorney is directed to perform Because it appears that appointment of counsel in subsequent matters which would include termination proceedings is discretionary the right to counsel is classified as qualified Guardianship of the Person Public Six-month review hearing The person who is the subject of a public guardianship also has the right to appointed counsel at the required six-month review hearing held during the pendency of the guardianship and court-appointed counsel will be provided if he or she is not represented with no mention of an indigency requirement or who pays for the attorney Md Code Fam Law 14-404 c 2 Guardianship of the Estate Property In 2022 the Maryland legislature enacted SB 694 effective as of October 1 2023 and provides that the court shall appoint an attorney to represent the alleged disabled person unless the person has already chosen counsel Md Code Ann Est Trusts 13-211 b 1 see also Md Rule 10-106 a 2 The appointment functions similarly to Md Code Ann Est Trusts 13-709 f Emergency protective services matters in that the state shall pay a reasonable attorney s fee if the person is indigent and that where the local department of social services is responsible for payment of the attorney the court shall appoint an attorney who has contracted with the Department of Human Services unless this is not in the person s best interests Md Code Ann Est Trusts 13-211 b 2 - 3 Attorney Role In In re Lee the Court of Special Appeals held that the attorney acts pursuant to the client s wishes and not as a guardian ad litem I n Maryland the proper role of an attorney court-appointed to represent an alleged disabled person in a guardianship proceeding has been shrouded in ambiguity Although ET 13-705 d provides that unless the alleged disabled person has counsel of his own choice the court shall appoint an attorney to represent him in the proceedings former Rule R76 stated that the court in its discretion may appoint an attorney to investigate and report to the court leaving it unclear whether the court is to appoint another attorney to perform that function or to rely on the attorney appointed to represent the alleged disabled person Although Maryland Rule 10-106 which replaced Rule R76 does not directly address the issue its implication is clear HN29 Section a of that rule states in part that upon the filing of a petition for guardianship of the person or property of a disabled person or minor who is not represented by an attorney the court shall promptly appoint an attorney for the disabled person The language giving the court the authority to appoint an attorney to investigate and report to the court has been eliminated from that section and a new section section c has been added giving the court the authority to appoint an independent investigator to investigate the facts of the case and report written findings to the court For further guidance as to the proper role of counsel for the alleged disabled person HN30 Maryland Rule 10-106 a cross references inter alia Rule 1 14 of the Maryland Rules of Professional Conduct Rule 1 14 provides that when representing a client whose ability to make decisions is impaired the lawyer shall as far as reasonably possible maintain a normal client- lawyer relationship with the client and if that client cannot adequately act in the client s own interests the lawyer may seek the appointment of a guardian or take other protective action The duty to maintain as far as reasonably possible a normal client-lawyer relationship precludes an attorney from acting solely as an arm of the court somewhat in the nature of a special master and using his assessment of the best interests of the client to justify waiving the client s rights without consultation divulging the client s confidences disregarding the client s wishes and even presenting evidence against him or her which is apparently what occurred in this case 754 A 2d 426 438-40 Md Ct Spec App 2000",yes,Yes Massachusetts,"In Guardianship of Zaltman the Massachusetts Court of Appeals held that where a ward seeks to remove the guardian and wants to retain counsel for the purpose the court has to evaluate whether the ward is capable of retaining counsel and if not the court must appoint counsel 843 N E 2d 663 Mass App Ct 2006",yes,Yes Massachusetts,"Pursuant to the Massachusetts Uniform Probate Code after filing a petition for appointment of a guardian conservator or other protective order if the ward incapacitated person or person to be protected or someone on his or her behalf requests appointment of counsel or if the court determines that the interests of the ward incapacitated person or person to be protected are or may be inadequately represented the court shall appoint an attorney to represent the person giving consideration to the choice of the person if fourteen or more years of age If the ward incapacitated person or person to be protected has adequate resources his counsel shall be compensated from the estate unless the court shall order that such compensation be paid by the petitioner Counsel for any indigent ward incapacitated person or person to be protected shall be compensated by the commonwealth M G L ch 190B 5-106 M G L ch 190B 5-311 c specifies that the court is to follow the same procedures for termination of guardianship as for establishment so presumably the right to counsel applies as well",yes,Yes Michigan,"Guardianship may be sought to due alleged mental incapacity or developmental disability These situations are treated separately in the code Unrepresented adults in developmental disability guardianships appear to have the greatest access to counsel while adults in guardianship cases sought due to alleged incapacity only have the right to counsel in some circumstances such as if they are objecting And in conservatorship matters the court is merely obligated to appoint a guardian ad litem GAL for certain adults Also it is not clear whether the GAL must be an attorney Due to these caveats the right to counsel is classified as qualified Due to incapacity Guardianship Establishment Mich Comp Laws 700 5305 addresses guardianships for an individual alleged to be incapacitated and provides If the individual alleged to be incapacitated wishes to contest the petition to have limits placed on the guardian s powers or to object to a particular person being appointed guardian or designated as standby guardian and if legal counsel has not been secured the court shall appoint legal counsel to represent the individual alleged to be incapacitated If the individual alleged to be incapacitated is indigent this state shall bear the expense of legal counsel Notice to the respondent must inform them of their right to counsel Mich Comp Laws 700 5311 3 and the guardian ad litem appointed for the respondent must also inform them of their right to an attorney and their right to an appointed attorney if indigent Mich Comp Laws 5305 1 c Guardianship Modification and Termination Mich Comp Laws 700 5310 4 states Before removing a guardian appointing a successor guardian changing the designated standby guardian modifying the guardianship s terms or terminating a guardianship and following the same procedures to safeguard the ward s rights as apply to a petition for a guardian s appointment the court may send a visitor to the present guardian s residence 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 applies to all proceedings to modify or terminate the guardianship such that the right to counsel is likely included or whether it only refers to the sending of the visitor However if a petition for modification or written request for modification comes from the legally incapacitated individual and that individual does not have an attorney the court shall immediately appoint an attorney If a petition for modification or written request for modification comes from some other party the court shall appoint a guardian ad litem If the guardian ad litem ascertains that the legally incapacitated individual contests the relief requested the court shall appoint an attorney for the legally incapacitated individual and terminate the appointment of the guardian ad litem Mich Comp Laws 5 408 Involuntary commitment context Protected persons also have the right to counsel in involuntary commitment matters Although a guardian has authority to consent on the protected person s behalf for medical mental health or other progressional care counsel treatment or service a guardian cannot consent to or approve of inpatient hospitalization unless the court has expressly granted this power in the court order Mich Comp Laws 700 5314 c If the protected person objects or actively refuses mental health treatment the guardian must follow the procedures in the mental health code for involuntary mental health treatment Id Conservatorship and other protective orders Finally in matters related to appointment of a conservator or protective orders for reasons other than minority the court shall appoint a guardian ad litem to represent the person in the proceeding unless a the individual to be protected has chosen legal counsel or b is mentally competent but aged or physically infirm Mich Comp Laws 700 5406 2 emphasis added There is no definition of guardian ad litem in the Estates and Protected Individuals Code so it is unclear whether the guardian ad litem must be an attorney See Mich Comp Laws 700 1104 Chapter 5 of the Michigan Court Rules which govern Probate Court also appear silent on a GAL s qualifications Mich Ct R Rule 5 121 found in the General Provisions and titled Guardian ad litem Visitor simply states that t he court shall appoint a guardian ad litem when required by law Due to developmental disability Mich Comp Laws 330 1615 which governs guardianships for the developmentally disabled specifies the following 1 A respondent is entitled to be represented by legal counsel 2 Unless an appearance has been entered on behalf of the respondent the court within 48 hours of its receipt of a petition together with the other documents required by section 612 shall appoint counsel to represent the respondent Counsel may be appointed from a system or organization that provides legal counsel to indigents or that has been established for the purpose of providing representation in the proceedings governed by this chapter 3 If the respondent prefers counsel other than the counsel appointed if preferred counsel agrees to accept the appointment and the court is notified of the preference by the respondent or preferred counsel the court shall replace the initially appointed counsel with preferred counsel 4 If the respondent is indigent the court shall compensate appointed counsel from court funds in an amount which is reasonable and based upon time and expenses 5 The supreme court by court rule may establish the compensation to be paid for counsel of indigents and may require that counsel be appointed from a system or organization that serves developmentally disabled or indigent people",yes,Yes Minnesota,"For guardianship cases A proposed ward has the right to be represented by counsel at any proceeding under this article The court shall appoint counsel to represent the proposed ward for the initial proceeding held pursuant to section 524 5-307 if neither the proposed ward nor others provide counsel unless in a meeting with a visitor the proposed ward makes an informed decision in writing to specifically waive the right to counsel Minn Stat 524 5-304 b Minn Stat 524 5-406 b repeats this right to counsel for guardianship of property proceedings even though the right for such proceedings already exists pursuant to 524 5-304 b Minn Stat 524 5-317 c incorporates the same procedures for guardianship terminations as guardianship establishments meaning the right to counsel should apply One court has suggested that the right to counsel from guardianship establishment proceedings indeed extends to guardianship review proceedings Greer v Professional Fiduciary Inc 792 N W 2d 120 127-28 Minn Ct App 2011 Minn Stat 524 5 417 c 3 grants a conservator the power to assert legal claims on behalf of an incapacitated person it does not deprive the incapacitated person of the right to challenge the conduct of her conservator or her guardian in the probate court In fact the conservatorship and guardianship statutes contain numerous provisions to ensure that incapacitated persons are informed of and may participate in the proceedings Both the conservatorship and guardianship statutes also guarantee incapacitated persons the right to counsel in these proceedings See Minn Stat 524 5 304 b Finally respondents also have the right to counsel in emergency guardianship matters Minn Stat 524 5-311 a states Immediately upon receipt of the petition for an emergency guardianship the court shall appoint a lawyer to represent the respondent in the proceeding and in matters where the guardian seeks court authority to sterilize the protected person See Minnesota Legislation Sterilization Right to counsel",yes,No Mississippi,"In conservatorship proceedings Miss Code Ann 93-20-406 provides that if the respondent is not represented the court may appoint an attorney for the respondent while Miss Code Ann 93-20-430 8 adds that A ward who seeks to terminate or modify the terms of the conservatorship has the right to choose an attorney to represent the ward in this matter If the ward is not represented by an attorney the court may appoint an attorney under the same conditions as in Section 93-20-406",discretionary,No Missouri,"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",yes,No Montana,"Generally The court may appoint counsel for respondents in guardianship establishment appointment of successor and termination matters and it must appoint counsel in guardianship cases where involuntary mental health treatment is sought In conservatorship establishment matters appointment of counsel is mandatory for unrepresented respondents regardless of income In matters related to the termination of a conservatorship appointment of counsel is required if the protected person is the one seeking the termination Any individual appointed counsel in guardianship or conservatorship cases is entitled to counsel on appeal if eligible Guardianships Establishment plenary appointment of successor guardian removal resignation and termination Discretionary appointment of counsel In proceedings for guardianships t he allegedly incapacitated person may have counsel of the person s own choice which presumably refers to private counsel or the court may in the interest of justice direct the state public defender s office to assign counsel pursuant to the Montana Public Defender Act MPDA See Mont Code Ann 72-5-315 2 See also 47-1-104 4 b vii implementing provision of the MPDA In proceedings to remove or terminate a guardianship or appoint a successor guardian the court shall follow the same procedures to safeguard the rights of the ward that apply to appointment of a guardian See 72-5-325 3 These rights presumably include the discretionary appointment of counsel provided by 72-5-315 2 Temporary guardianship Unclear whether the discretionary appointment provision attaches It is unclear whether the discretionary appointment of counsel attaches in matters related to establishing a temporary guardianship Unlike the provision regarding temporary conservatorship establishment 72-5-421 the temporary guardianship section 72-5-317 does not indicate that a prerequisite to the filing for temporary guardianship is that a petition for the appointment of a plenary guardian is pending which would likely trigger the discretionary appointment of counsel provision discussed above Involuntary mental health treatment Right to counsel An individual who is subject to a guardian s petition for involuntary mental health treatment is entitled to the assignment of counsel in accordance with the provisions of the MPDA See 72-5-322 2 see also 47-1-104 4 b viii implementing provision of theMPDA In addition the individual is entitled to all the other rights guaranteed under 53-21-114 53-21-115 53-21-119 and 53-21-120 72-5-322 2 Section 53-21-115 entitles an individual to all rights guaranteed by the constitution of the United States and of Montana by the laws of Montana or by the mental illness treatment statutes Moreover 53-21-119 1 provides that t he right to counsel may not be waived Conservatorships and other protective orders Establishment Plenary and temporary Right to counsel regardless of income As to matters relating to the protection disabled individuals property the code provides a right to counsel regardless of income in both plenary and temporary establishment matters Upon receipt of a petition for appointment of a conservator or other protective order for reasons other than minority the court shall set a date for hearing Unless the person to be protected has counsel of the person s own choice the court shall order the office of state public defender to assign counsel to represent the person pursuant to the Montana Public Defender Act Title 47 chapter 1 Mont Code Ann 72-5-408 2 Section 72-5-421 covers the procedure related to the appointment of a temporary conservator who may be appointed for a specified period not to exceed 6 months If immediate action is required to protect the person s welfare appointment may be made with or without notice Id Although no right to counsel provision is found there must be a petition for the appointment of a conservator or other protective order that is pending As discussed above the right to counsel attaches upon the filing of such a petition Modification No right to counsel found In matters related to modification of the conservator s powers whether enlargement or limitation no right to counsel was found See Mont Code Ann 72-5-430 Termination Right to counsel if the protected person seeks the termination The court may order the termination of a conservatorship termination if after a hearing the court determines that the disability of the protected person has ceased Mont Code Ann 72-5-437 The protected person their personal representative the conservator or any other interested person may file a petition asking for termination of theh conservatorship Id In such matters there is a presumptive right to counsel if the petition to terminate is brought by the protected person because the statute states A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order emphasis added Resignation and removal No right to counsel found In matters related to the resignation of a conservator or to the removal of a conservator for cause no right to counsel was found The applicable provision simply states The court may remove a conservator for good cause upon notice and hearing or may accept the resignation of a conservator After the conservator s death resignation or removal the court may appoint another conservator A conservator so appointed succeeds to the title and powers of the predecessor Mont Code Ann 72-5-414 Appeals Right to counsel if counsel was appointed below and where the individual is deemed eligible The court also has discretion to appoint a public defender for an eligible litigant in an appeal of any proceeding where counsel may be appointed pursuant to the MPDA which includes guardianship and conservatorship matters See 47-1-104 4 c The MPDA does not appear to define the term eligible but the Act does contain a section concerning eligibility which provides that eligibility requires a finding of indigence See generally 47-1-111 Thus it appears that a showing of indigence is required for appointment of counsel in all appeals even if appointment in the initial proceeding did not require such a showing",yes,Yes Nebraska,"Neb Rev Stat 30-2619 b specifies that in guardianship proceedings Upon the filing of a petition the court shall set a date for hearing on the issues of incapacity and unless the person alleged to be incapacitated has retained counsel of his or her own choice or has otherwise indicated a desire for an attorney of his or her own choice the court may appoint an attorney to represent him or her in the proceeding Neb Rev Stat 30-2626 b provides a similar discretionary power for temporary guardianships Neb Rev St 30-2623 c specifies that for guardianship removal termination proceedings 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 a visitor 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 It is unclear whether same procedures is limited to the visitor s actions which would not incorporate the discretionary appointment of counsel provision or applies to the whole proceeding In In re Guardianship of Brydon P 838 N W 2d 262 Neb 2013 the high court observed that Neb Stat 30-2620 01 authorizes payment of attorney fees for the ward s attorney when the ward is an adult but not when the ward is a minor and not in any situation for a petitioner s attorney However the court held that as a matter of public policy when a court determines that a petitioner seeks a guardianship appointment for a minor in good faith and that the guardianship is in the minor s best interests the court is statutorily authorized to assess a successful petitioner s reasonable costs including attorney fees against the minor s estate if an estate exists However the court held that the attorney fees could not be assessed against another party",discretionary,No Nevada,"In response to a Nevada Supreme Court Commission report recommending numerous changes to the state s guardianship law the Legislature passed a bill in 2017 rewriting Nev Stat 159 0485 to remove the requirement that a protected person request counsel and require the appointment of counsel for reviews of guardianship as well as the establishment previously appointment was discretionary at the review stage The new 159 0485 reads 1 Upon the filing of a petition for the appointment of a guardian for a proposed protected person who is an adult the court shall appoint an attorney for the proposed protected person unless the proposed protected person wishes to retain or has already retained an attorney of his or her own choice 2 The court shall a If the proposed protected person resides in a county that has a program for legal services for the indigent which provides legal services for protected persons and proposed protected persons who are adults and the program is able to accept the case appoint an attorney who works for the organization operating the program to represent the proposed protected person After such an appointment if it is ascertained that the proposed protected person wishes to have another attorney represent him or her the court shall appoint that attorney to represent the proposed protected person An attorney appointed pursuant to this subsection shall represent the proposed adult ward protected person until relieved of the duty by court order b If the proposed protected person resides in a county that does not have a program for legal services for the indigent which provides legal services for protected persons and proposed protected persons who are adults or if such a program exists but the program is unable to accept the case the court shall determine whether the proposed protected person has the ability to pay the reasonable compensation and expenses of an attorney from his or her estate If the proposed protected person 1 Has the ability to pay the reasonable compensation and expenses of an attorney the court shall order an attorney to represent the proposed protected person and require such compensation and expenses of the attorney to be paid from the estate of the proposed protected person 2 Does not have the ability to pay the reasonable compensation and expenses of an attorney the court may use the money retained pursuant to subparagraph 2 of paragraph a of subsection 3 of NRS 247 305 to pay for an attorney to represent the proposed protected person 3 If an attorney is appointed pursuant to paragraph a of subsection 2 and the proposed protected person has the ability to pay the compensation and expenses of an attorney the organization operating the program for legal services may request that the court appoint a private attorney to represent the proposed protected person to be paid by the proposed protected person 4 If the court finds that a person has unnecessarily or unreasonably caused the appointment of an attorney the court may order the person to pay to the estate of the protected person or proposed protected person all or part of the expenses associated with the appointment of the attorney For modification or termination of the guardianship Nev Stat 159 1905 2 now specifies Upon the filing of the petition the court shall appoint an attorney to represent the protected person if a The protected person is unable to retain an attorney or b The court determines that the appointment is necessary to protect the interests of the protected person",yes,No "New Hampshire","N H Stat 464-A 6 I provides that The right to legal counsel for any person for whom a temporary guardian or guardianship of the person and estate or person or estate is sought shall be absolute and unconditional Additionally the court shall appoint counsel if the proposed ward does not have his or her own counsel However the proposed ward shall be liable for attorneys fees unless he or she is found indigent by the probate court N H Stat 464- A 6 II In In re Guardianship of Eaton 42 A 3d 799 N H 2012 the high court found that the language of 464-A 43 another part of the guardianship code did not entitle the petitioner in a guardianship case to recoup attorney s fees from the ward where the petitioner acts in good faith The right to counsel in guardianship extends to the termination of guardianship proceeding N H Stat 464-A 40 II c Unless the motion is without merit the court shall hold a hearing similar to that provided for in RSA 464-A 8 and RSA 464-A 9 In Re Williams 159 N H 318 2009 At the termination hearing conducted in a manner similar to that of the guardianship hearing and with the ward s rights protected by counsel the burden is on the guardian to prove that the grounds for the appointment of the guardian continue to exist see RSA 464-A 40 II c",yes,No "New Jersey","In guardianship establishment proceedings for an incapacitated individual a statute and court rule require the appointment of counsel N J Stat Ann 3B 12-24 1 referring repeatedly to if the incapacitated person is not represented appointment of an attorney for the incapacitated person N J R 4 86-4 b See also N J Stat 3B 12-56 d if protected person objects to voluntary admission involuntary civil commitment procedures apply and If the ward objects to any other decision of the guardian of the ward pursuant to this section this objection shall be brought to the attention of the Superior Court Chancery Division Probate Part which may in its discretion appoint an attorney or guardian ad litem for the ward hold a hearing or enter such orders as may be appropriate in the circumstances The compensation of an appointed counsel may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct N J R 4 86-4 e 2011 N J Stat Ann 30 4-165 14 adds The court shall appoint the Public Defender to serve as counsel for persons who do not have an attorney and over whom guardianship is sought pursuant to C 30 4-165 4 et al if the petition seeks only guardianship of the person to the extent that funds are available for this purpose If the Public Defender is unable to perform this service the court shall appoint an attorney licensed by the State of New Jersey and in good standing No attorney s fee is payable for the rendering of this service by the private attorney Additionally for a person whom a court has determined because of physical or mental limitations or incapacity due to old age requires a conservator to handle his her financial affairs the court shall have the right to appoint counsel for the proposed conservatee if it believes that counsel is necessary to adequately protect the interests of the conservatee N J Stat Ann 3B 13A-3 In In re M R 638 A 2d 1274 N J 1994 the court clarified the role that counsel appointed pursuant to a statute should play Although we recognize the differences between minors and incompetents we believe that many of the same considerations that prompted the Family Division Practice Committee to recommend an advocacy role for the attorney for a minor apply also to the attorney for an incompetent Accordingly we now request that committee to consider comparable amendments to Rule 4 86 At present the Rule does not require the appointment of both an attorney and a guardian ad litem Nor may every case require both in the future In some cases however an incompetent like a minor may need both an attorney and a guardian ad litem Ordinarily an attorney should abide by the client s decisions concerning the objectives of representation RPC 1 2 a and act with reasonable diligence in representing the client RPC 1 3 The attorney s role is not to determine whether the client is competent to make a decision but to advocate the decision that the client makes That role however does not extend to advocating decisions that are patently absurd or that pose an undue risk of harm to the client An adversarial role for the attorney recognizes that even if the client s incompetency is uncontested the client may want to contest other issues such as the identity of the guardian or as here the client s place of residence Agenda for Reform supra 13 Mental Physical Disability L Rep at 284 With proper advice and assistance the developmentally-disabled client may be able to participate in such a decision See id at 285 commenting on Recommendation II-C and quoting American Bar Association Model Rules of Professional Conduct 1983 Rule 1 14 Client Under a Disability From this perspective the role of an attorney for a developmentally-disabled person is like that of an attorney representing any other client Advocacy that is diluted by excessive concern for the client s best interests would raise troubling questions for attorneys in an adversarial system An attorney proceeds without well-defined standards if he or she forsakes a client s instructions for the attorney s perception of the client s best interests Lawrence A Frolik Plenary Guardianship An Analysis A Critique and A Proposal for Reform 23 Ariz L Rev 599 635 1981 Further if counsel has already concluded that his client needs help he is more likely to provide only procedural formality rather than vigorous representation Id at 634-35 see also Maria M Das-Neves Note The Role of Counsel in Guardianship Proceedings of the Elderly 4 Geo J Legal Ethics 855 863 1991 stating that i f the attorney is directed to consider the client s ability to make a considered judgment on his or her own behalf the attorney essentially abdicates his or her advocate s role and leaves the client unprotected from the petitioner s allegations Finally the attorney who undertakes to act according to a best-interest standard may be forced to make decisions concerning the client s mental capacity that the attorney is unqualified to make Frolik supra 23 Ariz L Rev at 635 Until such time as we amend Rule 4 86 we offer the following guidelines to assist the attorney for an incompetent First a declaration of incompetency does not deprive a developmentally-disabled person of the right to make all decisions The primary duty of the attorney for such a person is to protect that person s rights including the right to make decisions on specific matters Generally the attorney should advocate any decision made by the developmentally-disabled person On perceiving a conflict between that person s preferences and best interests the attorney may inform the court of the possible need for a guardian ad litem",yes,No "New Mexico","There is a right to an attorney for unrepresented adults in plenary guardianship and conservatorship establishment proceedings but in an ad litem role Because the right to counsel does not apply in temporary establishment matters and because the representation provided is best interests and not client-directed the right to counsel is classified as qualified Guardianship Conservatorship Establishment Plenary Right to attorney ad litem If the adult respondent to a petition for the appointment of a guardian or conservator is unrepresented the court must appoint counsel regardless of indigency See N M Stat 45-5-303 D Procedure for court appointment of a guardian of an incapacitated person 45-5-407 B Procedure for court appointment of a conservator However counsel serves in a guardian ad litem role N M Stat 45-5-303 D 45-5-407 B Establishment Temporary Right to guardian ad litem who may or may not be an attorney Originally the court was also required to appoint counsel for the alleged incapacitated person in temporary guardianship N M Stat 45-5-310 B and temporary conservatorship N M Stat 45-5-408 B proceedings but in 2022 the New Mexico legislature passed SB 35 which amended these sections of the code changing counsel to guardian ad litem Under the Uniform Probate Code 45-5-101 a guardian ad litem is defined as a person appointed by the district court to represent and protect the interests of a minor or an incapacitated person in connection with litigation or any other court proceeding so it seems that the GAL need not be an attorney Guardianship Modification Enlargement of guardianship sought Right to attorney ad litem In matters related to guardianship modification if the proceeding seeks to increase the guardian s authority or reduce the autonomy of the adult the same procedures apply as those found in Section 45-5-303 See N M Stat 45-5-307 E Accordingly the court must appoint an attorney ad litem for an unrepresented adult Guardianship termination matters Right to attorney ad litem unless waived by the court In regards to removing a guardian N M Stat 45-5-307 C states The incapacitated person or any person interested in the incapacitated person s welfare may petition for an order that the incapacitated person is no longer incapacitated and for removal or resignation of the guardian The procedures followed u nless waived by the court must be the same procedures to safeguard the rights of the incapacitated person as those that apply to a petition for appointment of a guardian as set forth in Section 45-5-303 NMSA 1978 Id at D Accordingly an unrepresented adult would likely have the right to an attorney ad litem Guardianship review matters Discretionary appointment of attorney ad litem If the court receives a request for review of the guardianship t he court has the option to follow all or part of the procedures that apply for the appointment of a guardian as set forth in Section 45-5-303 NMSA 1978 N M Stat 45-5-307 F Conservatorship Termination Right to attorney ad litem if the protected person seeks termination Section 45-5-430 states as to petitions for termination of conservatorships The protected person his personal representative the conservator or any other person interested in the welfare of a person for whom a conservator has been appointed 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 The language same rights and procedures as in an original proceeding implies that the court must appoint an attorney ad litem for an unrepresented adult who has filed the petition to terminate",yes,Yes "New York","In Matter of Leon 43 N Y S 3d 769 N Y Surr Ct 2016 the court held that an indigent proposed ward in a guardianship proceeding under Article 17-A of the Surrogate s Court Procedure Act which applies only to persons with a diagnosis of a developmental or intellectual disability is constitutionally entitled to appointed counsel The court noted that NY CLS SCPA 407 b gives the Surrogate Court the authority to appoint counsel in any case where the judge determines that such assignment of counsel is mandated by the constitution of this state or of the United States and the court held that this case fit that description The court observed that Gideon s due process mandate has been extended to civil proceedings and quasi-criminal proceedings when fundamental interests no less important than freedom from incarceration are threatened and it noted past NY cases finding a right to counsel for cases involving termination of parental rights transfers of mental health patients parole revocation proceedings and others The court also pointed to the recent efforts around Intro 214-a which would provide a right to counsel in NYC housing cases and noted former Chief Judge Lippman s support for a civil right to counsel as well as the NY Legislature s endorsement of the civil right to counsel principle The court held Given that the right to assigned counsel is recognized in a myriad of quasi-criminal and civil proceedings ranging from military eviction and child custody to involuntary commitment and employment litigation there is no question that in Article 17-A proceedings where a person s decision-making authority in every aspect of life is at stake constitutional protections are warranted The resulting deprivation of fundamental liberty interests inherent in the appointment of an Article 17-A guardian constitutes a loss of liberty as significant as those which previously have triggered the appointment of counsel The fundamental liberty interests of an individual to self-determination privacy and autonomy are certainly equal to if not greater than the private interests implicated in proceedings involving the rights of parents in neglect proceedings or of tenants in housing court Article 17-A guardianship infringes on a person s fundamental right to privacy a fundamental right to refuse unwanted medical treatment and a fundamental right to make personal decisions regarding marriage procreation contraception family relationship child rearing and education The court also held that appointment of a GAL would not satisfy the due process need for a vigorous advocate on the respondent s behalf",yes,Yes "New York","In re St Luke s-Roosevelt Hosp Ctr 607 N Y S 2d 574 580 Sup Ct 1993 aff d 89 N Y 2d 889 N Y 1996 the court held that A t least where an Article 81 petition seeks powers for a guardian of the person to either place the allegedly impaired person in a nursing home or other institutional facility or to make major medical decisions an indigent allegedly impaired person is constitutionally entitled to the appointment of counsel at state expense The court found that the privacy interests and risks of erroneous deprivation were high because involuntary nursing home placement is dangerous to the person s health and because it implicates the person s liberty interests while the state s interests primarily the cost of providing the guardian were low The Court found that a forced relocation to a nursing home implicated a fundamental right akin to physical liberty",yes,Yes "New York","N Y Mental Hyg Law 81 10 81 11 e requires appointment of counsel in guardianship proceedings where requested where a petition is contested where the court thinks it would be helpful where the court is not satisfied that the person is capable of making an informed decision regarding the appointment of counsel or some other scenarios specified in the statute See In re Turner 730 N Y S 2d 188 190 App Div 2001 I ndigent defendants in the Criminal and Family Courts and poor allegedly incapacitated persons and incapacitated persons in Article 81 proceedings have the right to appointment of effective counsel Turner also suggested that counsel is provided when the guardianship is being modified See also In Re Diurno 182 Misc 2d 205 NY Sup Ct 1999 procedural safeguards for guardianship on review are essentially the same Note that N Y Mental Hyg Law 81 10 and 81 11 e do not apply to guardianships conducted under Article 17-A of the Surrogate s Court Procedure Act which applies only to persons with a diagnosis of a developmental or intellectual disability",yes,Yes "North Carolina","Proceedings determining whether an indigent individual is incompetent meaning that they do not have sufficient capacity to make or communicate important decisions concerning their person family or property and in the case of an adult to manage their own affairs N C Gen Stat 35A-1101 7 8 give rise to representation N C Gen Stat 7A-451 a 13 speaks of entitlement to counsel in such proceedings while N C Gen Stat 35A-1107 a adds The respondent is entitled to be represented by counsel of his own choice or by an appointed guardian ad litem Upon filing of the petition an attorney shall be appointed as guardian ad litem to represent the respondent unless the respondent retains his own counsel in which event the guardian ad litem may be discharged If a guardian seeks sterilization of the protected person N C Gen Stat 35A-1245 c provides that If the ward is unable to comprehend the nature of the proposed procedure and its consequences and is unable to provide an informed consent the clerk shall appoint an attorney to represent the ward in accordance with rules adopted by the Office of Indigent Defense Services At a hearing on a motion for restoration of a protected person to competency the ward shall be entitled to be represented by counsel or guardian ad litem and a guardian ad litem shall be appointed in accordance with rules adopted by the Office of Indigent Defense Services if the ward is indigent and not represented by counsel N C Gen Stat 35A-1130 c",yes,Yes "North Dakota","Guardianship and Conservatorship establishment In proceedings for guardianship due to incapacity u pon the filing of a petition the court shall appoint an attorney to act as guardian ad litem N D Cent Code Ann 30 1-28-03 3 The statute further explains that The duties of the guardian ad litem include a Personally interviewing the proposed ward b Explaining the guardianship proceeding to the proposed ward in the language mode of communication and terms that the proposed ward is most likely to understand including the nature and possible consequences of the proceeding the right to which the proposed ward is entitled and the legal options that are available including the right to retain an attorney to represent the proposed ward c Advocating for the best interests of the proposed ward The appointed attorney serving as legal guardian ad litem may not represent the proposed ward or ward in a legal capacity d Submitting a written report to the court containing the guardian ad litem s response to the petition and e Reviewing the visitor s written report submitted in accordance with subdivision h and i of subsection 6 and discussing the report with the proposed ward N D Cent Code Ann 30 1-28-03 4 The same right to the appointment of an attorney as a guardian ad litem in adult guardianship matters also exists in cases involving an appointment of a conservator or other protective order for reasons other than minority N D Cent Code Ann 30 1-29-07 2 Modification or termination of guardianship Another provision N D Cent Code Ann 30 1-28-07 3 says that for modification termination of a guardianship 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 a visitor to the place where the ward resides or is detained to observe conditions and report in writing to the court It is unclear whether the same procedures language applies only to the visitor s actions which would not incorporate the appointment of counsel provisions or to whole proceedings Matters related to involuntary treatment with certain medications Finally protected or proposed protected persons have the right to an attorney ad litem where the guardian or proposed guardian seeks court authorization to consent on the person s behalf to treatment with a prescribed mood stabilizer or antipsychotic medication The guardian can seek such authority either at the initial hearing on the plenary guardianship or at a separate involuntary treatment hearing The protected person is entitled to an attorney ad litem in such proceedings and the right attaches upon the petition being filed N D Cent Code Ann 30 1-28-16 1 Emergency Conservatorship In March 2023 North Dakota enacted SB 2222 which adds a new section to chapter 30 1-29 that creates a procedure for appointment of an emergency conservator The provision appears to apply to both minors and adults A person interested in the estate of the person to be protected may file a petition to initiate such proceedings and request appointment as the conservator Upon filing of the petition the court shall appoint a guardian ad litem to advocate for the best interests of the estate of the person to be protected in the proceeding and any subsequent proceeding Unlike the other sections of this chapter the provision does not specify that the GAL is an attorney",yes,Yes Ohio,"RC 2111 02 C 7 provides that If the hearing concerns the appointment of a guardian or limited guardian for an alleged incompetent the alleged incompetent has all of the following rights d If the alleged incompetent is indigent upon the alleged incompetent s request i The right to have counsel appointed at court expense In State of Ohio ex Rel McQueen 986 N E 2d 925 Ohio 2013 the Ohio Supreme Court found a right to counsel for guardianship review proceedings",yes,Yes Oklahoma,"Generally Adults subject to guardianship and conservatorship establishment matters have the right to counsel upon request regardless of indigency At later proceedings the court may appoint counsel Because there is a request requirement and because the right to counsel does not apply at subsequent matters this development is classified as qualified Establishment Right to counsel upon request Okla Stat tit 30 3-107 A provides that in a guardianship proceeding If at or prior to a hearing on a petition alleging a person to be an incapacitated or partially incapacitated person or if at any point in the course of a proceeding pursuant to said petition the subject of the proceeding is not represented by counsel the court may appoint an attorney as provided in this section and the court may at any time subsequent to the filing of said petition appoint a guardian ad litem to assist the court in making a determination as to whether or not an attorney should be appointed for the subject of the proceeding While this sounds like a matter of discretion for the judge 3-107 B specifies that If the subject of the proceeding is present at the hearing on the petition and is not represented by counsel at said hearing 1 The court shall explain on the record a the purpose and potential consequences of the proceeding and b the right to be represented by counsel upon request and that if the subject of the proceeding wishes to be represented by counsel the court will appoint an attorney to represent the subject of the proceeding at the hearing on the petition Additionally Okla Stat tit 30 3-106 A states In all hearings conducted pursuant to Article III of the Oklahoma Guardianship and Conservatorship Act an individual who is alleged to be or found to be an incapacitated or partially incapacitated person shall have a right to 7 representation by court-appointed counsel upon request See also OKLA STAT tit 30 3-107 B If the subject of the proceeding is present at the hearing on the petition and is not represented by counsel at said hearing 1 The court shall explain on the record b the right to be represented by counsel upon request and that if the subject of the proceeding wishes to be represented by counsel the court will appoint an attorney to represent the subject of the proceeding at the hearing on the petition Termination removals and annual review hearings Discretionary appointment Okla Stat tit 30 4-308 F says that for proceedings to terminate or remove a guardian or for review proceedings the court may appoint an attorney to represent at such hearing a ward who is an incapacitated or partially incapacitated person in the same manner and with the same compensation as provided in the Oklahoma Guardianship and Conservatorship Act for appointment of an attorney for the subject of the proceeding following the filing of a petition for appointment of a guardian or limited guardian of the person or property of an alleged incapacitated or partially incapacitated person emphasis added Similarly appointment is discretionary for annual review hearings Okla Stat tit 30 4-307 H for hearings related to guardianship annual reports court may appoint an attorney to represent the ward who is an incapacitated or partially incapacitated person in the same manner and with the same compensation as provided in this act for appointment of an attorney for the subject of the proceeding following the filing of a petition for appointment of a guardian or limited guardian of the person or property of an alleged incapacitated or partially incapacitated person see also In re Guardianship of Holly 164 P 3d 137 Okla 2007 We reject Appellees assertion that this right to an attorney of one s own choosing does not extend with the same force to a person who has already been declared a ward in a guardianship proceeding The massive curtailment of liberty associated with a guardianship proceeding continues as long as that guardianship persists The proceedings must continue to be conducted with the utmost care to ensure that the ward subject to that curtailment receives due process",yes,Yes Oregon,"The court has discretion to appoint counsel for a respondent or protected person in an adult protective proceeding Or Rev Stat Ann 125 025 3 b However Or Rev Stat Ann 125 080 6 a as amended in 2021 provides protected persons or respondents with the right to counsel i f the court requires that a hearing be held or a hearing is otherwise required under this section and one of the following is true A The respondent or protected person requests that counsel be appointed B An objection is made or filed to the petition or motion by any person C The court has appointed a visitor under ORS 125 150 125 160 or 125 605 and the visitor recommends appointment of counsel for the respondent or protected person or D The court determines that the respondent or protected person is in need of legal counsel But Or Rev Stat Ann 125 080 6 b clarifies that the court is not required to appoint counsel under this subsection if the respondent or protected person is already represented by counsel or otherwise objects to appointment of counsel The statute specifies that a court may require that a hearing be held on any petition or motion in a protective proceeding but a hearing must be held if the respondent or protected person makes or files an objection to the petition or motion and the objection is not withdrawn before the time scheduled for the hearing or the hearing relates to a motion to modify a guardian s powers under ORS 125 323 which may be filed by any interested party to contest the guardian s ability to limit the protected person s preferred associations Or Rev Stat Ann 125 080 1 - 3 emphasis added In regards to payment of attorney fees and costs for appointed counsel payment may be made from the guardianship or conservatorship estate or t he court may determine that the respondent or protected person is financially eligible for appointed counsel at state expense Or Rev Stat Ann 125 080 7 Since the guardianship statute Or Rev Stat Ann 125 300 et seq falls within the Protective Proceedings chapter this authority extends to guardianship proceedings as well Additional support for this interpretation is the fact that protected person is defined in Or Rev Stat Ann 125 005 7 as a person for whom a protective order has been entered and 125 300 1 which provides the circumstances in which a guardian can be appointed refers to the protected person Finally Or Rev Stat Ann 125 090 specifies that the same procedures for guardianship establishment proceedings apply to review proceedings so appointment of counsel would likely apply to review matters as well",yes,Yes Pennsylvania,"Guardianship establishment review modification and termination matters In 2023 the Pennsylvania legislature enacted SB 506 which provides the right to counsel to adult respondents in guardianship establishment modification and termination proceedings regardless of ability to pay 20 Pa Stat 5511 a 1 2 provides Regardless of the ability of the alleged incapacitated person to pay the court shall appoint counsel to represent the alleged incapacitated person in any matter for which counsel has not been retained by the alleged incapacitated person including in all proceedings under subsection a and in any subsequent proceedings to consider modify or terminate a guardianship Subsequent proceedings include review hearings which shall be held automatically in situations where the evidence indicates that the circumstances of the person s incapacity may change 20 Pa Stat 5512 2 A In other situations any interested person may file a petition with the court to terminate or modify the guardianship Id at A 1 The new also specifies that counsel is client-directed requiring that c ounsel for an alleged incapacitated person shall as far as reasonably possible maintain a normal client-attorney relationship with the client and shall advocate for the client s expressed wishes and consistent with the client s instructions to the extent the client is able to express wishes and provide instructions 20 Pa Stat 5511 a 1 3 Prior to SB 506 the law provided only for discretionary appointment of counsel in situations where the court deemed it appropriate and where the respondent was unable to afford counsel Right to counsel in matters related to expanding guardian s scope of authority and where respondent resides in state mental hospital The right may also apply at hearings where the guardian seeks authority to act beyond their typical source of authority A guardian cannot consent for certain medical treatment including abortion and experimental medical procedures nor to marriage or divorce unless specifically included in the guardianship order after specific findings of fact or otherwise ordered after a subsequent hearing 20 Pa Stat Ann 5521 d emphasis added Based on the broad language in 20 Pa Stat 5511 a 1 2 regarding any subsequent proceedings the right to counsel presumably also applies to hearings related to these matters Additionally if guardianship is sought for a person in a state mental hospital t he alleged incompetent and his guardian shall be represented by counsel and unless private estate counsel exists or is appointed by the Court of Common Pleas the Court Administrator shall take necessary steps to insure that such counsel is provided 204 Pa Stat Ann 29 41 3",yes,No "Rhode Island","Rhode Island law requires the probate court to provide an attorney for incapacitated individuals undergoing guardianship proceedings if the respondent contests the petition in some way R I Gen Laws 33-15-7 d Additionally the court shall appoint legal counsel if the respondent requests counsel or the guardian ad litem determines it is in the respondent s best interests 33-15-7 e For the guardianship removal proceedings however 33-15-18 a states only that t he ward may retain counsel for this purpose",yes,Yes "South Carolina","Originally S C Code Ann 62-5-303 b required that the court appoint an attorney to serve as guardian ad litem but in 2017 the legislature renumbered and amended the statute as S C Code Ann 62-5-303B A which states Upon receipt by the court of proof of service of the summons petition and notice of right to counsel upon the alleged incapacitated individual the court shall 1 upon the expiration of fifteen days from filing the proof of service on the alleged incapacitated individual if no notice of appearance has been filed by counsel retained by the alleged incapacitated individual appoint counsel 2 no later than thirty days from the filing of the proof of service on the alleged incapacitated individual appoint a a guardian ad litem for the alleged incapacitated individual who shall have the duties and responsibilities set forth in Section 62-5-106 S C Code Ann 62-5-303B B adds that the court may appoint counsel for a non-attorney guardian ad litem upon request For reviews of the guardianship S C Code Ann 62-5-307A B specifies that After filing and service of the summons and petition the court may appoint a guardian ad litem and may appoint counsel for the ward unless the ward has private counsel There is also a right to counsel in conservatorship proceedings S C Code Ann 62-5-403A C The notice of right to counsel shall advise the alleged incapacitated individual of the right to counsel of his choice and shall state that if the court has not received a notice of appearance by counsel selected by the alleged incapacitated individual within fifteen days from the filing of the proof of service the court will appoint counsel In appointing counsel the court may consider the expressed preferences of the alleged incapacitated individual",yes,No "South Dakota","South Dakota s Guardianship and Conservatorship Act obliges a court to appoint counsel to represent a protected person if requested by the person alleged to need protection if the person expresses a desire to contest the petition or if the court determines that an appointment is otherwise needed to protect the person s interests In appointing an attorney the court shall consider any known preferences of the person alleged to need protection S D Codified Laws 29A-5-309 The court can also appoint counsel for a guardianship review termination proceeding if necessary to protect the person s interests S D Codified Laws 29A-5-508 4 A similar provision permits a court to assign counsel to minors allegedly in need of protection S D Codified Laws 29A-5-205 Under South Dakota law the costs of such representation should come from the estate of the protected person or protected minor S D Codified Laws 29A-5-116 In In re Guardianship Conservatorship of Nicole Trina Stevenson 825 N W 2d 911 S D 2013 the court clarified the role of appointed attorneys in guardianship cases A court should be clear what role it intends the appointed advocate to assume keeping in mind that the attorney s role is not to determine the protected person s best interests but after advice and assistance to advocate a decision that the client desires Indeed the role of an attorney for a protected person should be no different than that of an attorney representing any other client as far as reasonably possible See S D Rules of Professional Conduct App ch 16-8 Rule 1 14 If on the other hand the court wishes to have an investigative report submitted on the best interests of the protected person a court representative is the proper appointment",yes,Yes Tennessee,"In guardianship proceedings Tenn Code Ann 34-1-125 dictates that The court shall appoint an attorney ad litem to represent the respondent on the respondent s request upon the recommendation of the guardian ad litem or if it appears to the court to be necessary to protect the rights or interests of the respondent Usually an attorney ad litem serves in a best interests capacity but the statute goes on to state The attorney ad litem shall be an advocate for the respondent in resisting the requested relief The statute adds that the costs of such attorney are charged against the assets of the respondent See also Tenn Code Ann 34-3-106 in guardianship proceedings The respondent has the right to 5 Have an attorney ad litem appointed to advocate the interests of the respondent Tenn Code Ann 34-3-108 c for review termination of guardianship the disabled person has all the rights set out in 34-3-106",yes,Yes Texas,"The court must appoint an attorney ad litem to represent the proposed ward s interests in guardianship appointment proceedings Tex Estates Code Ann 1054 001 as well as to represent the ward s interests in guardianship modification and termination matters unless the ward has retained an attorney Tex Estates Code Ann 1202 101 In In re Guardianship of Glasser 297 S W 3d 369 377 Tex App 2009 a court found that a judge may appoint more than one attorney for a proposed ward if the judge deems it necessary such as if the litigation is especially contentious Additionally Tex Estates Code 1054 007 gives the judge discretionary power to appoint an attorney ad litem in any guardianship proceeding for an incapacitated person or another person who has a legal disability a proposed ward a nonresident an unborn or unascertained person or an unknown or missing potential heir Until enactment of SB 1624 in 2023 it was unclear whether the term interests under the above statutes was limited to best interests or if it also included the ward or proposed ward s legal interests But the bill modified the language of these statutes to provide that the representation includ es the ward s or proposed ward s expressed wishes Despite this change representation that includes the respondent s wishes does not necessarily require advocating for those wishes it could mean that the attorney must simply present the respondent s wishes to the court Accordingly the right to counsel is considered qualified Prior to SB 1624 Tex Estates Code 1054 006 provided that if a ward or proposed ward retains their own attorney the court may dismiss the attorney ad litem However under the new law the court is required to dismiss the attorney ad litem where a ward or proposed ward has retained their own counsel This is true unless through the motion of a party or on the court s own motion a hearing is held at which the court finds by a preponderance of evidence that the ward or proposed ward does not understand the guardianship proceeding or the purpose for which the attorney was retained in which case the court may appoint an attorney ad litem See Tex Estates Code 1054 006 b - c Finally under Tex Health and Safety Code 613 004 c the court must appoint an attorney ad litem and a guardian ad litem to represent the ward s interests if the guardian petitions the court pursuant to 613 003 for an order authorizing the ward to donate a kidney to an immediate family member",yes,Yes Utah,"Due to alleged incapacitation In guardianship proceedings Utah Code Ann 75-5-303 provides 2 a Upon the filing of a petition the court shall set a date for hearing on the issues of incapacity b Unless the allegedly incapacitated person has counsel of the person s own choice the court shall appoint an attorney to represent the person in the proceeding the cost of which shall be paid by the person alleged to be incapacitated unless the allegedly incapacitated person and the allegedly incapacitated person s parents are indigent c If the court determines that the petition is without merit the attorney fees and court costs shall be paid by the person filing the petition d If the court appoints the petitioner or the petitioner s nominee as guardian of the incapacitated person regardless of whether the nominee is specified in the moving petition or nominated during the proceedings the petitioner shall be entitled to receive from the incapacitated person reasonable attorney fees and court costs incurred in bringing prosecuting or defending the petition 3 The legal representation of an allegedly incapacitated person by an attorney shall terminate upon the appointment of a guardian unless a there are separate conservatorship proceedings still pending before the court subsequent to the appointment of a guardian b there is a timely filed appeal of the appointment of the guardian or the determination of incapacity or c upon an express finding of good cause the court orders otherwise 6 e Counsel for the allegedly incapacitated person is not required if all of the following criteria are met i the allegedly incapacitated person is the biological or adopted child of the petitioner ii the value of the allegedly incapacitated person s entire estate does not exceed 20 000 as established by an affidavit of the petitioner in accordance with 75-3-1201 iii the allegedly incapacitated person s appearance at the hearing has not been waived and the person appears in court with the petitioner as described in Subsection 6 a iv the allegedly incapacitated person is given the opportunity to communicate to the extent possible the person s acceptance of or objection to the appointment of the proposed guardian including the opportunity to communicate that acceptance or objection to the court and as applicable to the person s supporters health care providers and attorney v no attorney from the state court s list of attorneys who have volunteered to represent respondents in guardianship proceedings is able to provide counsel to the person within 60 days of the date of the hearing described in Subsection 2 b vi the court is satisfied that counsel is not necessary to protect the interests of the person and vii the court appoints a court visitor and receives a report from the court visitor under Subsection 5 Thus there are certain circumstances where the court does not have to appoint counsel Utah Code Ann 75-5-307 3 specifies that Before removing a guardian accepting the resignation of a guardian or ordering that a ward s incapacity has terminated the court shall follow the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian as provided in Section 75-5-303 The court is not required to appoint an attorney to represent the ward if the case is uncontested and the ward s incapacity is not at issue See also Utah Code Ann 75-5-310 5 2 requiring appointed counsel for temporary guardianships Due to intellectual disability In 2025 Utah enacted SB 199 creating a new part within its Probate Code covering guardianships of individuals with severe intellectual disability Utah Code 75-5-601 et seq At Section 75-5-603 1 a the law provides 1 An adult who is allegedly incapacitated and for whom there is a signed letter or report from a physician or psychologist that indicates that the adult is an individual with a severe intellectual disability has the right to a be represented by counsel before a guardianship is imposed and have counsel represent the adult during the guardianship proceeding If the respondent is not represented by counsel of their own choice the court shall appoint an attorney to represent them This is true unless all of the following conditions are present a the respondent is the child grandchild or sibling of the petitioner b the value of the respondent s entire estate does not exceed 2 000 as established by an affidavit from the petitioner c the respondent appears in court with the petitioner in-person or remotely d the respondent is given the opportunity to communicate to the extent possible the respondent s acceptance of the appointment of a guardian and e the court is satisfied that counsel is not necessary in order to protect the interests of the respondent Utah Code 75-5-606 2 The same is true of counsel in matters related to emergency or temporary guardianship of the person See 75-5-608 3",yes,Yes Vermont,"A court rule provides for the appointment of counsel for unrepresented respondents in guardianships sought due to intellectual disability or mental health Vermont Family Proceedings Rule 6 1 which applies to all proceedings involving adults under 3 18 V S A Chapter 206 Care for Persons with Intellectual Disabilities and 4 18 V S A Chapter 215 Protective Services states In all proceedings to which this rule applies the court shall assign counsel pursuant to Administrative Order No 32 to represent the respondent unless counsel has been retained by that person Vt R Fam Pro R 6 1 b",yes,No Vermont,"In adult guardianship proceedings whether due to mental health or developmental disability the respondent has a right to counsel In mental-health related guardianships and conservatorships the statute provides that the court shall appoint counsel for the respondent when an initial petition is filed in any subsequent proceeding the court shall appoint counsel upon the respondent s or a party s written request and may appoint counsel upon its own initiative See 14 V S A 3065 a 1 However a court rule states that counsel is required for respondents who have not retained counsel in all proceedings involving adults under Subchapter 12 of 14 V S A Chapter 111 The court rule does not contain a request requirement Vt R Prob P R 80 10 a - b emphasis added Per statute the right to counsel extends to matters related to the appointment of an emergency temporary guardian as well See 14 V S A 3081 b A list of pro bono counsel is maintained and given preference for appointment above legal services organizations Id at 3065 c Similarly in proceedings related to a guardianship or conservatorship sought due to developmental disability the statute states Upon the filing of the petition the court shall appoint counsel for the respondent 18 V S A 9308 The right to counsel also applies in matters related to modification or termination of the guardianship per 18 V S A 9316 c A right to counsel is provided for by court rule as well Vermont Rules of Probate Procedure Rule 80 10 provides that in all proceedings involving adults under 18 V S A Chapters 215 the court shall assign counsel pursuant to Administrative Order No 32 to represent the respondent unless counsel has been retained by that person Vt R Prob P R 80 10 a - b",yes,No Virginia,"VA Code Ann 64 2-2006 states that in a guardianship proceeding The respondent has the right to be represented by counsel of the respondent s choice If the respondent is not represented by counsel the court may appoint legal counsel upon the filing of the petition or at any time prior to the entry of the order upon request of the respondent or the guardian ad litem if the court determines that counsel is needed to protect the respondent s interest Counsel appointed by the court shall be paid a fee that is fixed by the court to be taxed as part of the costs of the proceeding However Va Code Ann 64 2-2003 mandates the appointment of a guardian ad litem and 64 2-2000 specifies that Guardian ad litem means an attorney appointed by the court to represent the interests of the respondent For guardianship review proceedings all that is provided for is appointment of a guardian ad litem who again must be an attorney Va Code Ann 64 2-2012",yes,Yes Washington,"Under Wash Rev Code 11 88 045 1 a alleged incapacitated individuals are entitled to be represented by counsel of their own choosing at any stage in guardianship proceedings The court must provide counsel to represent any alleged incapacitated person at public expense when i the individual is unable to afford counsel ii the expense of counsel would result in substantial hardship to the individual or iii the individual does not have practical access to funds with which to pay counsel If the individual can afford counsel but lacks practical access to funds the court must provide counsel and may impose a reimbursement requirement as part of a final order The statute also specifies that When in the opinion of the court the rights and interests of an alleged or adjudicated incapacitated person cannot otherwise be adequately protected and represented the court on its own motion shall appoint an attorney at any time to represent such person Counsel must also be appointed when the appointed guardian seeks to take certain steps such as providing informed consent for health care Wash Rev Code 11 92 043 5 The court may order the procedure only after an attorney is appointed in accordance with RCW 11 88 045 if no attorney has previously appeared notice is given and a hearing is held in accordance with RCW 11 88 040 Finally adults subject to a petition for appointment of an emergency guardian or emergency conservator are entitled to counsel as well Wash Rev Code 11 130 320 9 as to emergency guardianship petitions 11 130 430 9 as to emergency conservatorship petitions",yes,No "Washington D.C.","Temporary and Plenary Guardianship D C Code 21-2046 b 3 requires appointment of counsel for the respondent in a temporary guardianship matter while D C Code 21-2041 d requires appointment in hearings to appoint a plenary guardian Appointment of Successor Guardian and Termination Matters The right to counsel likely extends to guardianship modification and termination matters as well since the code specifies that the same procedures used in the guardianship establishment proceedings are used for these matters D C Code 21-2049 b - c A ward seeking termination is entitled to the same rights and procedures as in an original proceeding for appointment of a guardian Before appointing a successor guardian or ordering that a ward s incapacity has terminated the court shall follow the same procedures to safeguard the rights of the ward that apply to a petition for appointment of a guardian Matters related to guardian s authority to consent to certain medical treatment Absent express authority through the order of appointment or after subsequent hearing and order of the court a guardian does not have the power to consent to certain kinds of medical treatment including abortion sterilization and psycho-surgery except to preserve the life or prevent the immediate serious impairment of the physical health of the incapacitated individual D C Code 21-2047 01 As discussed above D C Code Ann 21-2041 provides the respondent to a guardianship petition with the right to counsel and this right seems to continue through subsequent hearings Accordingly the right to counsel presumably attaches to hearings in which a guardian seeks the power to consent to certain medical treatments",yes,No "West Virginia","W Va Code 44A-2-7 a and W Va Code 44A-4-6 c establish a right to counsel in the establishment and termination of guardianships or conservatorships respectively In the context of establishing a guardian or conservatorship i n appointing legal counsel the court shall consider any known preferences of the alleged protected person or an alleged protected person may hire and pay for an attorney of his or her choice",yes,No Wisconsin,"When a petition for guardianship is filed the proposed ward or ward has a right to counsel if 1 the proposed ward or ward requests counsel 2 the guardian ad litem or another person notifies the court that the proposed ward or ward is opposed to the guardianship petition or 3 the court determines that the interests of justice so requires Wis Stat Ann 54 42 1 a If the proposed ward or ward has a right to counsel pursuant to Wis Stat Ann 54 42 1 a but is unable to obtain legal counsel the court shall appoint legal counsel for the proposed ward or ward Wis Stat Ann 54 42 1 c Pursuant to Wis Stat Ann 54 64 2 a a ward or the ward s guardian may petition for a review of incompetency to have the guardian discharged and a new guardian appointed or to have the guardianship limited and specific rights restored If such petition is filed the court must conduct a hearing at which the ward is present and the ward will have the right to counsel during such hearing Wis Stat Ann 54 64 2 b Notwithstanding any finding of incompetence for the ward the ward may retain and contract for the payment of reasonable fees to an attorney the selection of whom is subject to court approval in connection with proceedings involving review of the terms and conditions of the guardianship including the question of incompetence Wis Stat Ann 54 64 2 b The court must appoint counsel if the ward is unable to obtain counsel and if the ward is indigent the county of jurisdiction for the guardianship must provide counsel at the county s expense Wis Stat Ann 54 64 2 b",yes,Yes Wyoming,"Wyo Stat Ann 3-1-205 a states that The proposed ward of any involuntary petition for guardianship or conservatorship shall have the right to iv have counsel appointed upon order of the court It is unclear whether this confers a right or whether the court has discretion to choose whether to order such appointment but it appears to be the latter given that the statute also provides for appointment of a guardian ad litem without the upon order of the court qualifying language",discretionary,No