Right to counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Ward

For temporary guardianship proceedings, Me. Rev. Stat. Ann. tit. 18-A, § 5-310-A(a-1) provides that "The visitor or guardian ad litem shall ... advise the allegedly incapacitated person of that person's right to be represented in the proceeding by counsel of that person's own choice or by counsel appointed by the court."

 

For permanent guardianship proceedings, Me. Rev. Stat. Ann. tit. 18-A, § 5-303(b) states that

 

Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity and unless the allegedly incapacitated person is already represented by an attorney, the court shall appoint one or more of the following: a visitor, a guardian ad litem or an attorney to represent the allegedly incapacitated person in the proceeding. If it comes to the court's attention that the allegedly incapacitated person wishes to contest any aspect of the proceeding or to seek any limitation of the proposed guardian's powers, the court shall appoint an attorney to represent the allegedly incapacitated person.

 

Me. Rev. Stat. Ann. tit. 18-A, § 5-307(c), which governs termination of the guardianship, specifies that the court, "following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send a visitor to the residence of the present guardian and to the place where the ward resides or is detained", but this phrase has been interpreted to mean that the court may send a visitor and must generally use the same procedural safeguards in the termination proceeding as in the initial establishment hearing (which would include appointment of counsel). Guardianship of Lander, 697 A.2d 1298, 1299 (Me. 1997) (relying on legislative history, but not specifically addressing appointment of counsel question).

Appointment of Counsel: categorical Qualified: yes