MO court: those subject to guardianship have right to attorney to undo it

In Kinard v. Summit, a woman subjected to guardianship who had previously been adjudicated as incapacitated sought to remove the guardian.  An attorney with Missouri Protection and Advocacy Services agreed to help her for free and filed a petition for removal, but the guardian argued the attorney was neither “hired” by the woman nor appointed by the probate court and therefore could not represent the woman.  The probate court disqualified the attorney, but on different grounds than those sought by the guardian.  The court relied on Schieber v. Schieber, 298 S.W.3d 130 (Mo. Ct. App. 2009), a case where the Missouri Court of Appeals held that a person subjected to guardianship who had been adjudicated as incapacitated cannot hire counsel.

The NCCRC gave input on an amicus brief that we joined along with the Center for Public Representation, National Disability Rights Network, American, Civil Liberties Union, American Civil Liberties Union of Missouri, Autistic Self, Advocacy Network, Bazelon Center for Mental Health Law, National Association of Councils on Developmental Disabilities, Disability Rights Education & Defense Fund, and CommunicationFIRST.  The amicus brief argued that not only was the trial court misunderstanding Schieber since having volunteer counsel is not the same as having “hired” counsel, but also that she retained the ability to hire an attorney.  We also argued that denying her the right to counsel of choice was a due process violation.  Finally, we argued that if her counsel of choice could not represent her, the appointed attorney should at least serve a client-directed role, not a best interests role.  The appellant also argued that the directives given to the appointed attorney by the trial court violated the attorney’s right to determine the best strategy.  I also participated in the moot prep with appellant’s counsel along with a number of other people.

In January 2025, the Missouri Court of Appeals reversed, finding that Schieber was based on the question of an incapacitated person’s ability to contract, whereas if attorneys are serving pro bono there is no “contract” and therefore no problem with the representation.