Right to counsel

Generally

Indigent elders have the right to a court appointed attorney in involuntary protective services cases as do indigent disabled individuals in non-emergency protective matters.  This is true unless the court determines, after a hearing, that the individual lacks the capacity to retain or waive counsel, in which case the court appoints a guardian ad litem.

As to “elderly persons”

Generally, an “elderly person” (defined as an individual sixty years of age or older, Mass. Gen. Laws Ann. ch. 19A § 14) must consent to receive protective services. See Mass. Gen. Laws Ann. ch. 19A § 19.  The applicable statute provides, “Any elderly person who requests or affirmatively consents to the receipt of protective services may receive said services. If the person withdraws or refuses consent, the service shall not be provided or continued except as provided in section twenty.” Id. at (a) (emphasis added).

Section 20 allows the department to petition the court for an order (or emergency order) authorizing protective services. See Mass. Gen. Laws Ann. ch. 19A § 20.  It may also “appoint a conservator, guardian or other person authorized to consent to the provision of protective services” if it determines that “no other person who is authorized to consent is available or willing” to do so. Id. at (a).

In either proceeding, the adult has the right to appointed counsel if indigent. See Mass. Gen. Laws Ann. ch. 19A § 20(a)-(b).  However, “[i]f the court determines that the elderly person lacks the capacity to retain counsel or waive the right to counsel, the court shall appoint a guardian ad litem to represent the interests of such elderly person.” Id.

As to “disabled persons”

Similarly, protective services can be provided to “disabled persons” if the individual or their current guardian consent. Mass. Gen. Laws Ann. ch. 19C § 6(1).  A “Disabled person” is defined as “a person between the ages of eighteen to fifty-nine, inclusive, who is a person with an intellectual disability as defined by section 1 of chapter 123B, or who is otherwise mentally or physically disabled and as a result of such mental or physical disability is wholly or partially dependent on others to meet his daily living needs.” Mass. Gen. Laws Ann. ch. 19C § 1.

However, if the person is in need of protective services and lacks the capacity to consent, and “no other person who is authorized to consent is available or willing to consent,” the disabled persons protection commission (“Commission”) may petition the court for authorization to provide protective services (including on an emergency basis) involuntarily. See Mass. Gen. Laws Ann. ch. 19C § 7.  Alternatively, the court may enter an order “appoint[ing] a conservator, guardian, or other person authorized to consent” to the services. Id. at (a).

In such matters, the disabled person has the right to court appointed counsel if indigent. Id.  However, “[i]f the court determines that the disabled person lacks the capacity to waive the right to counsel, the court shall appoint a guardian ad litem to represent the interests of such disabled person.” Id.  The right to counsel does not appear to extend to matters related to petitions for emergency orders for protective services though, which may be entered ex parte if necessary. See id. at (b).