Right to counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Ward

For guardianship cases,

 

A proposed ward has the right to be represented by counsel at any proceeding under this article. The court shall appoint counsel to represent the proposed ward for the initial proceeding held pursuant to section 524.5-307 if neither the proposed ward nor others provide counsel unless in a meeting with a visitor the proposed ward makes an informed decision in writing to specifically waive the right to counsel.

 

Minn. Stat. § 524.5-304(b). Minn. Stat. §524.5-406(b) repeats this right to counsel for guardianship of property proceedings, even though the right for such proceedings already exists pursuant to § 524.5-304(b). 

 

Minn. Stat. § 524.5-317(c) incorporates the same procedures for guardianship terminations as guardianship establishments, meaning the right to counsel should apply.

 

One court has suggested that the right to counsel from guardianship establishment proceedings indeed extends to guardianship review proceedings. Greer v. Professional Fiduciary, Inc., 792 N.W.2d 120, 127-28 (Minn. Ct. App. 2011) ("Minn.Stat. § 524.5–417(c)(3) … grants a conservator the power to assert legal claims on behalf of an incapacitated person; it does not deprive the incapacitated person of the right to challenge the conduct of her conservator—or her guardian—in the probate court … In fact, the conservatorship and guardianship statutes contain numerous provisions to ensure that incapacitated persons are informed of, and may participate in, the proceedings … Both the conservatorship and guardianship statutes also guarantee incapacitated persons the right to counsel in these proceedings. See Minn.Stat. § 524.5–304(b)…")

Appointment of Counsel: categorical Qualified: no