Right to counsel

Upon the filing of a guardianship petition, the court shall appoint an attorney for the allegedly incapacitated person unless the person is already represented by counsel. Ala. Code § 26-2A-102(b).  The role of the attorney is that of a guardian ad litem. Id.

After guardianship has been granted, the protected person is entitled to an attorney in matters related to extension and termination of the guardianship:  “Before appointing a successor guardian, or ordering that a ward’s incapacity has terminated, the court shall follow the same procedures to safeguard the rights of the ward that apply to a petition for appointment of a guardian.” Ala. Code § 26-2A-110(c).

As to an adult subject to a petition for conservatorship or other protective order, the law appears to require appointed counsel.  While Ala. Code § 26-2A-135(d) states that such person is only “entitled to be represented by counsel, at the person’s expense, § 26-2A-135(b) states, “Unless the person to be protected has chosen counsel, the court shall appoint an attorney to represent the person who may be granted the powers and duties of a guardian ad litem.” 

The phrase “who may be granted the powers and duties of a guardian ad litem” appears to be a reference to the appropriate role of the attorney appointed to represent the subject of the conservatorship, not a reference to an attorney for the proposed conservator.  This is made clearer by looking at § 26-2A-135(a):  “An attorney appointed by the court to represent a minor may be granted the powers and duties of a guardian ad litem.”  Admittedly, § 26-2A-135(b) would be clearer if a comma were added: “Unless the person to be protected has chosen counsel, the court shall appoint an attorney to represent the person, who may be granted the powers and duties of a guardian ad litem.”  And even with this clarification, it is unclear how to reconcile these two apparently conflicting provisions.