Right to counsel

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Legislation, Guardianship/Conservatorship of Adults - Ward

In guardianship establishment proceedings for an incapacitated individual, a statute and court rule require the appointment of counsel. N. J. Stat. Ann. § 3B:12-24.1 (referring repeatedly to "if the incapacitated person is not represented, [] appointment of an attorney for the incapacitated person"); N.J. R. 4:86-4(b).


The compensation of an appointed counsel may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct. N.J. R. 4:86-4(e) (2011). N.J. Stat. Ann. § 30:4-165.14 adds:


The court shall appoint the Public Defender to serve as counsel for persons who do not have an attorney and over whom guardianship is sought pursuant to … (C. 30:4-165.4 et al.) if the petition seeks only guardianship of the person, to the extent that funds are available for this purpose. If the Public Defender is unable to perform this service, the court shall appoint an attorney licensed by the State of New Jersey and in good standing. No attorney's fee is payable for the rendering of this service by the private attorney.


Additionally, for a person whom a court has determined because of physical or mental limitations or incapacity due to old age requires a conservator to handle his/her financial affairs, "the court shall have the right to appoint counsel for the proposed conservatee if it believes that counsel is necessary to adequately protect the interests of the conservatee." N. J. Stat. Ann. § 3B:13A-3

Appointment of Counsel: categorical Qualified: no