Right to counsel

Generally

The court must appoint counsel in various types of guardianship and conservatorship proceedings.

Guardianship of the Person (Private)

In a case regarding the appointment of a guardian for an alleged disabled person, the court shall appoint an attorney to represent the alleged disabled person, unless the person has counsel of his or her own. Md. Code Ann., Est. & Trusts § 13-705(d); see also Md. Rule 10-106(a)(2).  The State shall pay for reasonable attorney’s fees for an indigent alleged disabled person in such a case; otherwise the fee shall be paid out of the estate.  Id.

Emergency Protective Services Matters

In a hearing on a petition for an emergency order for protective services, “[t]he person has the right to counsel whether or not [they] are present at the hearing.” Md. Code Ann., Est. & Trusts § 13-709(f)(1)(ii).  If the person is indigent or lacks the capacity to waive their right to counsel, the court shall appoint counsel. Id. If they are indigent, the State shall pay a reasonable attorney’s fee. Id.

If the local department of social services is responsible for paying the court-appointed attorney, then the court shall appoint “an attorney who has contracted with the Department of Human Services to provide those services,” unless this is not in the person’s best interests. Md. Code Ann., Est. & Trusts § 13-709(f)(2).  Similarly, if an attorney was previously appointed, the court shall strike that attorney’s appearance and appoint such a contracted attorney, unless this is not in the person’s best interests. Id.

Other matters

Discretionary appointment

Md. Rule 10-106(d)(4) provides as to the continuing appointment of counsel in subsequent matters:

Nothing in this section precludes a court from appointing, reappointing, or continuing the appointment of an attorney for a minor or disabled person after a guardianship has been established if the court finds that such appointment or continuation is in the best interest of the minor or disabled person. An order of appointment after a guardianship has been established shall state the scope of the representation and may include specific duties the attorney is directed to perform.

Because it appears that appointment of counsel in subsequent matters, which would include termination proceedings, is discretionary, the right to counsel is classified as “qualified.”

Guardianship of the Person (Public)

Six-month review hearing

The person who is the subject of a public guardianship also has the right to appointed counsel at the required six-month review hearing held during the pendency of the guardianship, and court-appointed counsel will be provided if he or she is not represented (with no mention of an indigency requirement or who pays for the attorney). Md. Code Fam. Law § 14-404(c)(2).

Guardianship of the Estate (Property)

In 2022, the Maryland legislature enacted SB 694, effective as of October 1, 2023, and provides that the court shall appoint an attorney to represent the alleged disabled person unless the person has already chosen counsel. Md. Code Ann., Est. & Trusts § 13-211(b)(1); see also Md. Rule 10-106(a)(2).  The appointment functions similarly to Md. Code Ann., Est. & Trusts § 13-709(f) (Emergency protective services matters), in that the state shall pay a reasonable attorney’s fee if the person is indigent and that, where the local department of social services is responsible for payment of the attorney, the court shall appoint an attorney who has contracted with the Department of Human Services unless this is not in the person’s best interests. Md. Code Ann., Est. & Trusts § 13-211(b)(2)-(3).

Attorney Role

In In re Lee, the Court of Special Appeals held that the attorney acts pursuant to the client’s wishes and not as a guardian ad litem:

[I]n Maryland the proper role of an attorney, court-appointed to represent an alleged disabled person in a guardianship proceeding, has been shrouded in ambiguity. Although ET § 13-705 (d) provides that “unless the alleged disabled person has counsel of his own choice, the court shall appoint an attorney to represent him in the proceedings,” former Rule R76 stated that the court, in its discretion, may appoint an attorney to investigate and report to the court, leaving it unclear whether the court is to appoint another attorney to perform that function or to rely on the attorney appointed to represent the alleged disabled person.

Although Maryland Rule 10-106, which replaced Rule R76, does not directly address the issue, its implication is clear. HN29 Section (a) of that rule states, in part, that “upon the filing of a petition for guardianship of the person or property of a disabled person or minor who is not represented by an attorney, the court shall promptly appoint an attorney for the disabled person.” The language giving the court the authority to appoint an attorney to investigate and report to the court, has been eliminated from that section and a new section, section (c), has been added giving the court the authority to “appoint an independent investigator to investigate the facts of the case and report written findings to the court.” For further guidance as to the proper role of counsel for the alleged disabled person, HN30 Maryland Rule 10-106(a) cross references, inter alia, Rule 1.14 of the Maryland Rules of Professional Conduct. Rule 1.14 provides that when representing a client whose ability to make decisions is impaired, “the lawyer shall, as far as reasonably possible, maintain a normal client- lawyer relationship with the client” and, if “that client cannot adequately act in the client’s own interests,” the lawyer “may seek the appointment of a guardian or take other protective action.” The duty to maintain “as far as reasonably possible . . . a normal client-lawyer relationship” precludes an attorney from acting solely as an arm of the court, somewhat in the nature of a special master, and using his assessment of the “best interests” of the client to justify waiving the client’s rights without consultation, divulging the client’s confidences, disregarding the client’s wishes, and even presenting evidence against him or her, which is apparently what occurred in this case.

754 A.2d 426, 438-40 (Md. Ct. Spec. App. 2000).