Right to counsel

In In re Guardianship of K.M., 816 P.2d 71, 74-75 (Wash. Ct. App. 1991), the court found that the trial court had erred in not appointing counsel under § 11.88.045 for an incapacitated minor in a proceeding where her parents sought to be appointed as guardians so that they could consent to her sterilization.  The minor had been appointed a guardian ad litem (GAL) but the GAL had advised against appointment of counsel, had waived a number of the minor’s rights, and had generally acted in a non-adversarial manner.  The court of appeals agreed and said that under § 11.88.045 “alleged incompetents are entitled to independent legal counsel.”  It noted the severity of a decision to sterilize, and held, “Given the fundamental right at issue here and the lack of adversarial testing of the relevant considerations to be weighed, we hold that the trial court erred by failing to appoint independent counsel for K.M. In such a case, independent counsel should be appointed when it becomes apparent to the trial court, either upon review of the guardian ad litem’s report or at any point during the hearing, that the appointment is necessary in order to ensure a thorough adversary exploration of the issues.”