Right to counsel

Generally

Adults subject to guardianship and conservatorship establishment matters have the right to counsel upon request, regardless of indigency. At later proceedings, the court may appoint counsel. Because there is a request requirement and because the right to counsel does not apply at subsequent matters, this development is classified as “qualified.”

Establishment

Right to counsel upon request

Okla. Stat. tit. 30, § 3-107(A) provides that in a guardianship proceeding,

If at or prior to a hearing on a petition alleging a person to be an incapacitated or partially incapacitated person, or if at any point in the course of a proceeding pursuant to said petition, the subject of the proceeding is not represented by counsel, the court may appoint an attorney as provided in this section, and the court may at any time subsequent to the filing of said petition appoint a guardian ad litem to assist the court in making a determination as to whether or not an attorney should be appointed for the subject of the proceeding. 

While this sounds like a matter of discretion for the judge, § 3-107(B) specifies that

If the subject of the proceeding is present at the hearing on the petition and is not represented by counsel at said hearing: 1. The court shall explain on the record: a. the purpose and potential consequences of the proceeding; and b. the right to be represented by counsel upon request and that if the subject of the proceeding wishes to be represented by counsel, the court will appoint an attorney to represent the subject of the proceeding at the hearing on the petition.

Additionally, Okla. Stat. tit. 30, § 3-106(A) states, “In all hearings conducted pursuant to Article III of the Oklahoma Guardianship and Conservatorship Act, an individual who is alleged to be or found to be an incapacitated or partially incapacitated person shall have a right to: … 7. representation by court-appointed counsel upon request . . . ”  See also OKLA. STAT. tit. 30, § 3-107(B) (“If the subject of the proceeding is present at the hearing on the petition and is not represented by counsel at said hearing: 1. The court shall explain on the record: … b. the right to be represented by counsel upon request and that if the subject of the proceeding wishes to be represented by counsel, the court will appoint an attorney to represent the subject of the proceeding at the hearing on the petition.”).

Termination, removals, and annual review hearings

Discretionary appointment

Okla. Stat. tit. 30, §4-308(F) says that for proceedings to terminate or remove a guardian, or for review proceedings, “the court may appoint an attorney to represent at such hearing a ward who is an incapacitated or partially incapacitated person, in the same manner and with the same compensation as provided in the Oklahoma Guardianship and Conservatorship Act for appointment of an attorney for the subject of the proceeding following the filing of a petition for appointment of a guardian or limited guardian of the person or property of an alleged incapacitated or partially incapacitated person.” (emphasis added).

Similarly, appointment is discretionary for annual review hearings. Okla. Stat. tit. 30, §§ 4-307(H) (for hearings related to guardianship annual reports, court “may appoint an attorney to represent the ward who is an incapacitated or partially incapacitated person, in the same manner and with the same compensation as provided in this act for appointment of an attorney for the subject of the proceeding following the filing of a petition for appointment of a guardian or limited guardian of the person or property of an alleged incapacitated or partially incapacitated person.”); see also In re Guardianship of Holly, 164 P.3d 137 (Okla. 2007) (“We reject Appellees’ assertion that this right to an attorney of one’s own choosing does not extend with the same force to a person who has already been declared a ward in a guardianship proceeding. The ‘massive curtailment of liberty’ associated with a guardianship proceeding continues as long as that guardianship persists. The proceedings must continue to be conducted with the utmost care to ensure that the ward subject to that curtailment receives due process.”).