Right to counsel

Generally

Indigent contesting parents have the right to counsel in guardianship matters, and the court may appoint counsel for indigent parents or guardians in contested actions where the parent seeks to revoke their prior consent or terminate the guardianship.  The court is merely permitted to appoint counsel for objecting parents in conservatorship cases but must appoint counsel for objecting parents in other protective arrangement matters.

Because objecting parents are not entitled to counsel in proceedings to appoint a conservator of their minor child, the right to counsel is classified as qualified.

Guardianships

As to nonconsenting indigent parents who retain parental rights

In judicial appointment of a guardian matters, “A nonconsenting parent whose parental rights have not been terminated is entitled to court-appointed legal counsel if indigent.” Me. Rev. Stat. tit. 18-C, § 5-205(4).

As to indigent guardians or petitioners where the parent or legal custodian is represented

Me. Rev. Stat. tit. 18-C, § 5-205(4) provides, “In a contested action, the court may also appoint counsel for any indigent guardian or petitioner when a parent or legal custodian has counsel.” 

Parent’s petition to terminate

A parent’s petition to terminate, which would include “[a] parent’s notification to the court of the revocation of prior consent for a guardianship”, the court is permitted to appoint counsel for any indigent guardian or parent if the action is contested. Me. Rev. Stat. Ann. tit. 18-C, § 5-210(7).

Emergency appointment: No right to counsel found

No right to counsel provision was located in the section governing the appointment of a guardian on an emergency basis.  In fact, Section 5-204 specifies that a court may appoint a guardian on an emergency basis if “[f]ollowing the procedures set forth in section 5-205… will likely result in substantial harm to the minor’s health or safety before a guardian can be appointed”. Me. Rev. Stat. Ann. tit. 18-C, § 5-204(4)(A)(3).  However, another factor that is required for emergency appointment is that a petition for the appointment of a guardian is pending, which would trigger the right to counsel provisions detailed above. Id. at (4)(A)(4).

Furthermore, the Uniform Guardianship, Conservatorship and Other Protective Arrangements (“UGCOPA”) Act does not require the appointment of counsel for parents upon the appointment of an emergency guardian, so this omission does not impact the classification of the right to counsel.

Conservatorships

In conservatorship cases, the court is permitted to appoint counsel for certain parents:

The court may appoint an attorney to represent a parent of a minor who is the subject of a proceeding on a petition under section 5-402 if:

A. The parent objects to appointment of a conservator;
B. The court determines that counsel is needed to ensure that consent to appointment of a conservator is informed; or
C. The court otherwise determines the parent needs representation.

Me. Rev. Stat. tit. 18-C, § 5-406(3).

Other protective arrangements

If a less restrictive alternative to guardianship or conservatorship would be appropriate, “other protective arrangements” can be sought. See Me. Rev. Stat. Ann. tit. 18-C, §§ 5-502 and 5-503 (bases for protective arrangements as alternatives to guardianship and conservatorship). In such matters, Section 5-507(3) provides for the mandatory appointment of counsel for parents if any of the same three factors from Section 5-406 (detailed above) are present. See Me. Rev. Stat. tit. 18-C, 5-507(3).