Discretionary appointment of counsel

Generally

The court may appoint counsel for a minor in a guardianship, conservatorship, or other protective order matter.  Because the appointment provision does not appear to extend to situations where the minor seeks modification of the conservatorship, as recommended by the Uniform Law Commission, the right to counsel is also classified as “qualified.”

Guardianships

Establishment and resignal / removal

Discretionary appointment

In matters related to the appointment of a guardian of a minor, the court is permitted–but not required–to appoint counsel for the child.  The statute provides:

If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, the court may order the office of state public defender, provided for in 2-15-1029, to assign counsel pursuant to the Montana Public Defender Act, Title 47, chapter 1, to represent the minor.

Mont. Code Ann. § 72-5-225(3).  This provision presumably also applies in matters related to the appointment of a guardian on a temporary basis, because–unlike the procedure section governing conservatorships–Section 72-5-225 does not indicate that it is restricted to hearings on the “original petition.”

As to the removal or resignation of a guardian,

Any person interested in the welfare of a ward or the ward, if 14 years of age or older, may petition for removal of a guardian on the ground that removal would be in the best interests of the ward. A guardian may petition for permission to resign. A petition for removal or for permission to resign may but need not include a request for appointment of a successor guardian.

The same language as to discretionary appointment where “the court determines that the interests of the ward are or may be inadequately represented” applies. See § 72-5-234(3).

Conservatorships and other protective orders

Establishment: Plenary and temporary

Discretionary appointment

The court is also permitted to appoint counsel for minors subject to a petition for the appointment of a conservator or other protective order due to minority.  The section governing “Procedure concerning hearing and order on original petition” states, “If at any time in the proceeding the court determines that the interests of the minor are or may be inadequately represented, the court may order the office of state public defender…” § 72-5-408(1).

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 appointment of counsel provision was found, there must be a petition for the appointment of a conservator or other protective order that is pending.  Accordingly, the discretionary appointment of counsel provision would attach.

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

Discretionary appointment if the minor seeks the termination

The court may order the termination of a conservatorship termination if after a hearing the court determines that “the minority … 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 the conservatorship. Id.

In such matters, the discretionary appointment of counsel provision presumably attaches 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).