2025-2026 Right to Counsel in Guardianship Cases Overview

Overview

Guardianship laws in most states (as well as the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, or UGCOPA Act) cover two disparate types of guardianship proceedings:

• adult guardianship, which involve adult respondents with alleged intellectual or developmental disabilities; and,
• child guardianships, which are a kind of child custody proceeding that can be an alternative to a child welfare proceeding.

In this piece we review legislative changes in 2025 and provide a 2026 update.

2025 Review

In 2025, numerous states sought guardianship reforms, including Colorado, Idaho, Kansas, and Utah.  Utah and Kansas successfully enacted legislation. 

UTAH | SB 199. While most of the proposed or enacted laws would strengthen the right to counsel overall, Utah’s law had an unfortunate provision, weakening the right to counsel for adult respondents in cases where guardianship is sought due to intellectual disability.  SB 199 creates a separate procedure in Utah for such cases, with numerous exceptions to the rule that counsel must be appointed for such a respondent.

KANSAS | HB 2359. Kansas passed HB 2359 (based on the 2007 version of the National Conference of Commissioners on Uniform State Laws’ model guardianship act). The bill removed a controversial, albeit limited, discretionary appointment of counsel provision for guardians; created in child guardianship cases a discretionary appointment for parents and replaced a discretionary appointment provision with a qualified right to counsel for kids 12 years of age or older who ask for counsel; and made clear that attorneys in adult guardianship cases must “advocate for the respondent’s wishes to the extent reasonably ascertainable.”

2026 Updates

As of February 2026, numerous guardianship bills have already been introduced. 

ALASKA | SB 190. Alaska has introduced a version of the UGCOPA Act.  Unfortunately, it would weaken protections for adult respondents in the state. Currently, counsel for respondents in guardianships/ conservatorships is required for all individuals who can’t afford to hire an attorney.  The proposed law would only require counsel in guardianship/ conservatorship establishment cases if one of three things is true: the respondent requests an attorney; the visitor recommends counsel; or the court determines the respondents needs representation. 

A 2024 study in Maine (a state with very similar requirements to the law proposed in Alaska) found that 75% of respondents were not appointed counsel from 2019-21.  Representation rates were even worse for those with developmental disabilities, 90% of whom went without legal representation.  The report also found that the presence of an attorney made a big difference, significantly decreasing the likelihood of a full guardianship.

NEW JERSEY | AB 965. A bill in New Jersey would also narrow the right to counsel. Currently, the court must appoint counsel for any adult respondent who’s unrepresented, regardless of income.  The proposed law would require appointment only for those who cannot afford an attorney.

IDAHO | SB 1240. A bill in Idaho would change the right to counsel in the overwhelming majority of proceeding types (including by permitting appointment of counsel for objecting parents where the current law is silent and potentially weakening the right to counsel for children by shifting to a discretionary, rather than mandatory, appointment of counsel).

For adult conservatorship and child guardianship, the proposed law would weaken protections.  Currently, appointment of counsel in Idaho conservatorship cases is discretionary, unless the conservatorship is sought due to developmental disability, in which case the court must appoint an attorney.  The new law makes appointment discretionary in all conservatorship establishment cases. As to children, current law requires the court to appoint counsel if it determines that the minor has “sufficient maturity”, but the court may decline to appoint counsel if it makes a finding in writing that appointment is not necessary. We classify this as a discretionary appointment model.  The proposed law merely states that the court may appoint counsel if the child requests counsel and is 12 years of age or older; the guardian ad litem recommends counsel; or the court determines that the minor needs representation. We’d classify this appointment model as both discretionary and qualified. However, the bill does make clear that any attorney appointed must advocate for the minor’s wishes if those wishes are “reasonably ascertainable.”

Advancing protections in guardianship cases

Adopting the UGCOPA Act

Legislatures should consider adopting the most recent model guardianship act approved by the National Conference of Commissioners on Uniform State Laws: the Uniform Guardianship, Conservatorship, and Other Protective Arrangements (UGCOPA) Act. Released in 2017, it has many strong provisions and is an important update.  For example, the UGCOPA Act prohibits guardianships where “less restrictive alternatives would meet an adult’s functional needs”, helping to protect adults’ rights to self-determination and autonomy wherever possible. 

As to the right to counsel specifically–the UGCOPA Act specifies the appropriate role of an attorney for an adult respondent, requiring the attorney to “make reasonable efforts to ascertain the respondent’s wishes” and “advocate for the respondent’s wishes to the extent reasonably ascertainable.” This is often a huge improvement to the laws of many states which may merely provide an attorney ad litem (that is, an attorney who represents the respondents’ best interests as ascertained by the attorney, rather than the respondent’s wishes). See UGCOPA, Section 305(b); see also NCCRC, Right to Counsel Status Map to learn more about the status of the right to counsel in guardianship cases across the country. 

Room to improve the UGCOPA Act

Alternative A in Section 305 (which specifies counsel for adults in guardianship cases should only be appointed if requested by the respondent, recommended by the visitor, or determined to be necessary by the court) is problematic, as the above-described report from Maine demonstrates.  Requiring an adult respondent to request counsel before an attorney is appointed is problematic, because  respondents with cognitive disabilities may not understand the full import of these proceedings or why they might need a lawyer, particularly if the petitioner is a family member or friend they believe they can trust.  The Maine report discussed above supports the concept that a request system precludes appointment in the majority of cases.  (A similar concern applies as to the provision governing appointment for children in child guardianships, which only requires counsel if one of three situations occurs. See Section 204.)  When considering the UGCOPA Act, state legislatures should opt instead for Section 305 Alternative B, which requires counsel for adult respondents who are unrepresented and regardless of their ability to pay and states should adopt the same approach for appointment for children.

Additional protections

In addition to adopting the UGCOPA Act, alternatives to guardianship, such as supported decision-making and advance directives, should always be explored.  State legislatures can encourage these alternatives by enacting laws formally recognizing SDM agreements, and 39 states have chosen to do so. 

Additional Resources

• Amy Bryant, Report Card: How Well Does Tennessee Score on State Recommendations from the National Guardianship Network?, 61(5) Tenn. Bar. J. (Sept/Oct 2025).
• Conference of State Court Administrators, The Demographic Imperative: Guardianships and Conservatorships (2010) 
• Disability Rights Maine, Overprotected and Underrepresented: An Analysis of Adult Guardianship in Maine (Oct. 2024).
• In re Guardianship of V.V., 24 N.E.3d 1022 (Mass. 2015) (finding unanimously that parents have a constitutional right to counsel in private proceedings to establish guardianships of their children).
• Nevada Supreme Court’s Commission to Study the Administration of Guardianships in Nevada’s Courts, Final Report (Sept. 2016).
• Patricia M. Cavey, Realizing the Right to Counsel in Guardianship: Dispelling Guardianship Myths, Marquette Elder’s Advisor: Vol. 2: Iss. 1, Article 5 (2000).

This analysis is written by A. Insalaco, Legal Research and Legislative Specialist.

Last Updated February 2026