Right to counsel

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).