Right to counsel

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Legislation, Civil Commitment - Subject of Petition

When a person is mentally disabled and requires involuntary admission to residential services, he or she is entitled to appointed counsel at both the capacity determination regardless of indigence, see Fla. Stat. Ann. § 393.12(5), and the hearing to determine involuntary admission if indigent, see § 393.11(6)(a).  Counsel must also be appointed for people subject to petitions for involuntary outpatient placement, see § 394.4655(5) (“the court shall appoint the public defender to represent the person . . ., unless the person is otherwise represented by counsel”), or inpatient placement, see § 394.467(4) (same).

 

In Auxier v. Jerome Golden Center for Behavioral Health, 85 So.3d 1164 (Fla. App. 2012), a ward's guardian commited the ward and then opposed appointment of counsel for the ward, arguing that the guardian's own attorney could represent the ward. The Court of Appeals held that the attorney appointed pursuant to § 394.467(4) represents the ward, not any GAL that the ward might have.

 

There is also a right to counsel for involuntary substance abuse treatment. Fla. Stat. §§ 397.681(2); 397.6975(3) (where service provider seeks to extend treatment); 394.4598(1) (court must appoint counsel for patient where facility administrator seeks to appoint guardian advocate to consent to treatment on patient’s behalf).  

 

Where the state seeks to place a juvenile in a mental health facility, "the court shall appoint a guardian ad litem for the child, if one has not already been appointed, and shall also appoint an attorney for the child."  Fla. R. Juv. P. Rule 8.350(a)(3).

Appointment of Counsel: categorical Qualified: no