Discretionary appointment of counsel

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Legislation, Guardianship/Conservatorship of Adults - Ward

Montana's Public Defender Act authorizes the court to appoint a public defender  for a person who is the subject of a petition to appoint a legal guardian or conservator, regardless of the person's financial need, subject to "the provisions of the Uniform Probate Code in Title 72, chapter 5."  Mont. Code Ann. §§ 47–1–104(4)(b)(vii). In turn, Mont. Code Ann. § 72-5-315 states that appointment of counsel should occur only where the court determines such appointment is necessary "in the interest of justice."  Otherwise, the statute provides that the person "may have counsel of the person's own choice," which implies privately retained counsel, rather than counsel paid for by the state. Mont. Code Ann. § 72-5-325 states that the same procedures for establishment of guardianship are used for termination of guardianship, so the same discretionary appointment of counsel provisions apply as well. A public defender may be appointed for litigants on appeal as well. Mont. Code Ann. § 47–1–104(4)(c). 


Additionally, the public defender statute authorizes appointment of a public defender for a ward, regardless of financial need, when the ward's guardian has filed a petition to require medical treatment for a mental disorder of the ward, as provided in § 72-5-322. Mont. Code Ann. §§ 47–1–104(4)(b)(viii). Mont. Code Ann. § 72-5-322 in turn provides that "[t]he ward is entitled to the assignment of counsel, in accordance with the provisions of the Montana Public Defender Act, Title 47, chapter 1"). A public defender may be appointed for litigants on appeal as well.

Appointment of Counsel: discretionary Qualified: no