Right to counsel – Temporary and emergency conservatorships

The court must appoint counsel for minors in emergency and temporary conservatorship cases and seemingly may appoint in other matters.

Guardianship

The part of the Probate Code covering guardianship of minors states, “A person becomes a guardian of a minor by parental appointment, by designation of a standby guardian pursuant to chapter 257B, or upon appointment by the court.” Minn. Stat. § 524.5-201.  

By parental appointment – no right to counsel for objecting minor

Section 524.5-203 states:

Until the court has confirmed an appointee under section 524.5-202, a minor who is the subject of an appointment by a parent and who has attained 14 years of age, the other parent, or a person other than a parent or guardian having custody or care of the minor may prevent or terminate the appointment at any time by filing in the court in which the appointing instrument is filed a written objection and by giving notice of the objection to the guardian and any other persons entitled to notice of the acceptance of the appointment.

(emphasis added).  No appointment of counsel provision was located for the objecting minor.

By court – permanent and other guardianship matters – presumptive discretionary appointment

In matters related to court appointment of permanent guardian for a minor, the court is permitted to appoint counsel the child.  Minn. Stat. § 524.5-205(e) states:

If the court determines at any stage of the proceeding, before or after appointment, that the interests of the minor are or may be inadequately represented, it may appoint a lawyer to represent the minor, giving consideration to the choice of the minor if the minor has attained 14 years of age, provided that such appointment shall expire upon the expiration of the appeal time for the order appointing guardian or the order dismissing a petition or upon such other time or event as the court may direct.

(emphasis added).  The discretionary appointment presumably also applies in matters related to modification, termination, and the appointment of a temporary guardian since the provision specifies that appointment may be made “at any stage of the proceeding, before or after appointment”.

Conservatorships and other protective orders

Unlike guardianship matters, it appears that conservatorships of a minor may only be established through a court proceeding, as opposed to through an alternate process such as parental appointment.

Permanent conservatorship – discretionary appointment

The section of the code covering the establishment of permanent conservatorships and other protective orders due to minority uses the same language as that governing court establishment of permanent guardianships. See Minn. Stat. § 524.5-405(a).  The applicable provision states:

Upon the filing of a petition to establish a conservatorship or for another protective order for the reason that the respondent is a minor, the court shall set a date for hearing. If the court determines at any stage of the proceeding that the interests of the minor are or may be inadequately represented, it may appoint a lawyer to represent the minor, giving consideration to the choice of the minor if the minor has attained 14 years of age.

Minn. Stat. § 524.5-405(a).

Emergency / temporary conservatorship – right to counsel

In regard to the appointment of a conservator on a temporary or emergency basis though, appointment of counsel is mandatory. See Minn. Stat. § 524.5-409 (“Immediately upon receipt of the petition for an emergency conservatorship, the court shall appoint a lawyer to represent the respondent in the proceeding.”).

Termination – discretionary appointment

In regard to the termination of a conservatorship, the statute specifies,  “Except as otherwise ordered by the court for good cause, before terminating a conservatorship, the court shall follow the same procedures to safeguard the rights of the person subject to conservatorship that apply to a petition for conservatorship.” § 524.5-431(d).  Thus, Minn. Stat. § 524.5-405(a) presumably applies to provide for discretionary appointment.