Right to counsel

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 Nov. 8, 2017) (unpublished) (relying on In re Guardianship of Griesinger, 804 N.W.2d 527, 530 [Iowa Ct.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.”