Right to counsel – Conservatorship matters

Generally

The court may appoint counsel for respondents in guardianship establishment, appointment of successor, and termination matters, and it must appoint counsel in guardianship cases where involuntary mental health treatment is sought.  In conservatorship establishment matters, appointment of counsel is mandatory for unrepresented respondents regardless of income.  In matters related to the termination of a conservatorship, appointment of counsel is required if the protected person is the one seeking the termination. 

Any individual appointed counsel in guardianship or conservatorship cases is entitled to counsel on appeal if “eligible.”

Guardianships

Establishment (plenary), appointment of successor guardian, removal, resignation, and termination

Discretionary appointment of counsel

In proceedings for guardianships, “[t]he allegedly incapacitated person may have counsel of the person’s own choice,” which presumably refers to private counsel, “or the court may, in the interest of justice,” direct the state public defender’s office “to assign counsel pursuant to the Montana Public Defender Act” (MPDA).  See Mont. Code Ann. § 72-5-315(2).  See also § 47-1-104(4)(b)(vii) (implementing provision of the MPDA). 

In proceedings to remove or terminate a guardianship, or appoint a successor guardian, “the court shall follow the same procedures to safeguard the rights of the ward that apply to . . . appointment of a guardian.”  See § 72-5-325(3).  These rights presumably include the discretionary appointment of counsel provided by § 72-5-315(2). 

Temporary guardianship

Unclear whether the discretionary appointment provision attaches

It is unclear whether the discretionary appointment of counsel attaches in matters related to establishing a temporary guardianship.  Unlike the provision regarding temporary conservatorship establishment (§ 72-5-421), the temporary guardianship section (§ 72-5-317) does not indicate that a prerequisite to the filing for temporary guardianship is that a petition for the appointment of a (plenary) guardian is pending, which would likely trigger the discretionary appointment of counsel provision discussed above.

Involuntary mental health treatment

Right to counsel

An individual who is subject to a guardian’s petition for involuntary mental health treatment “is entitled to the assignment of counsel, in accordance with the provisions of the [MPDA].” See § 72-5-322(2); see also § 47-1-104(4)(b)(viii) (implementing provision of theMPDA).  In addition, the individual is entitled to “all the other rights guaranteed . . . under [§§] 53-21-114, 53-21-115, 53-21-119, and 53-21-120.”  § 72-5-322(2).  Section 53-21-115 entitles an individual to all rights “guaranteed by the constitution of the United States and of [Montana], by the laws of [Montana], or by” the mental illness treatment statutes.  Moreover, § 53-21-119(1) provides that “[t]he right to counsel may not be waived. 

Conservatorships and other protective orders

Establishment: Plenary and temporary

Right to counsel regardless of income

As to matters relating to the protection disabled individuals’ property, the code provides a right to counsel regardless of income in both plenary and temporary establishment matters:

Upon receipt of a petition for appointment of a conservator or other protective order for reasons other than minority, the court shall set a date for hearing. Unless the person to be protected has counsel of the person’s own choice, the court shall order the office of state public defender to assign counsel to represent the person pursuant to the Montana Public Defender Act, Title 47, chapter 1.

Mont. Code Ann. § 72-5-408(2).  

Section 72-5-421 covers the procedure related to the appointment of a temporary conservator, who may be appointed “for a specified period not to exceed 6 months.”  If immediate action is required to protect the person’s welfare, appointment may be made with or without notice. Id.  Although no right to counsel provision is found, there must be a petition for the appointment of a conservator or other protective order that is pending.  As discussed above, the right to counsel attaches upon the filing of such a petition.

Modification

No right to counsel found

In matters related to modification of the conservator’s powers, whether enlargement or limitation, no right to counsel was found. See Mont. Code Ann. § 72-5-430.

Termination

Right to counsel if the protected person seeks the termination

The court may order the termination of a conservatorship termination if after a hearing the court determines that the “disability of the protected person has ceased.” Mont. Code. Ann. § 72-5-437.  The protected person, their personal representative, the conservator, “or any other interested person” may file a petition asking for termination of theh conservatorship. Id.  

In such matters, there is a presumptive right to counsel if the petition to terminate is brought by the protected person, because the statute states, “A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order.” (emphasis added).  

Resignation and removal

No right to counsel found

In matters related to the resignation of a conservator or to the removal of a conservator for cause, no right to counsel was found.  The applicable provision simply states, “The court may remove a conservator for good cause, upon notice and hearing, or may accept the resignation of a conservator. After the conservator’s death, resignation, or removal, the court may appoint another conservator. A conservator so appointed succeeds to the title and powers of the predecessor.” Mont. Code. Ann. § 72-5-414.

Appeals

Right to counsel if counsel was appointed below and where the individual is deemed “eligible”

The court also has discretion to appoint a public defender for an “eligible” litigant in an appeal of any proceeding where counsel may be appointed pursuant to the MPDA, which includes guardianship and conservatorship matters.  See § 47-1-104(4)(c).  The MPDA does not appear to define the term “eligible,” but the Act does contain a section concerning “eligibility,” which provides that eligibility requires a finding of indigence.  See generally § 47-1-111.  Thus, it appears that a showing of indigence is required for appointment of counsel in all appeals, even if appointment in the initial proceeding did not require such a showing.