Right to counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Ward

In guardianship establishment proceedings, "if the proposed ward is an adult and is not the petitioner, the proposed ward is entitled to representation," and "[u]pon filing of the petition, the court shall appoint an attorney to represent the proposed ward." Iowa Code § 633.561(1)(a). A nearly identical statutory scheme provides for appointment of counsel in conservatorship proceedings. Iowa Code § 633.575(1).  In Estate of Leonard, ex rel., Palmer v. Swift, 656 N.W.2d 132, 139 (Iowa 2003), the court described at length the role of an attorney appointed pursuant to this statute, specifically that a) counsel is not a guardian ad litem but rather must advocate for the wishes of the ward; and b) counsel, unlike a guardian ad litem, continues representation through any conservatorship proceedings.  And in In re Guardianship & Conservatorship of Robert Kenneth Fagan, 2017 Iowa App. LEXIS 1156 (Iowa App. 2017), the court stated, “This court has recognized counsel's failure to act as counsel for the proposed ward constitutes reversible error.”

 

Additionally, if the ward is a "minor or an adult under a standby petition" and "the court determines that the proposed ward is entitled to representation, the court shall appoint an attorney to represent the proposed ward." Id. at § 633.561(1)(b). The statute does not explain how the court is supposed to determine whether the minor ward is "entitled to representation", although it says in a later provision that "If the court determines that it would be in the ward's best interest to have legal representation with respect to any proceedings in a guardianship, the court may appoint an attorney to represent the ward at the expense of the ward or the ward's estate, or if the ward is indigent the cost of the court appointed attorney shall be assessed against the county in which the proceedings are pending."

Appointment of Counsel: categorical Qualified: no