Right to counsel

Guardianship and Conservatorship establishment

In proceedings for guardianship due to incapacity, “[u]pon the filing of a petition, the court shall . . . appoint an attorney to act as guardian ad litem[.]”  N.D. Cent. Code Ann. § 30.1-28-03(3).  The statute further explains that:

The duties of the guardian ad litem include:

a. Personally interviewing the proposed ward;

b. Explaining the guardianship proceeding to the proposed ward in the language, mode of communication, and terms that the proposed ward is most likely to understand, including the nature and possible consequences of the proceeding, the right to which the proposed ward is entitled, and the legal options that are available, including the right to retain an attorney to represent the proposed ward;

c. Advocating for the best interests of the proposed ward. The appointed attorney serving as legal guardian ad litem may not represent the proposed ward or ward in a legal capacity;

d. Submitting a written report to the court containing the guardian ad litem’s response to the petition; and

e. Reviewing the visitor’s written report submitted in accordance with subdivision h and i of subsection 6 and discussing the report with the proposed ward.

N.D. Cent. Code Ann. § 30.1-28-03(4).  The same right to the appointment of an attorney as a guardian ad litem in adult guardianship matters also exists in cases involving an appointment of a conservator or other protective order for reasons other than minority.  N.D. Cent. Code Ann. § 30.1-29-07(2).  

Modification or termination of guardianship

Another provision, N.D. Cent. Code Ann. § 30.1-28-07(3), says that for modification/termination of a guardianship, “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 place where the ward resides or is detained, to observe conditions and report in writing to the court.”  It is unclear whether the “same procedures” language applies only to the visitor’s actions (which would not incorporate the appointment of counsel provisions) or to whole proceedings.

Matters related to involuntary treatment with certain medications

Finally, protected or proposed protected persons have the right to an attorney ad litem where the guardian or proposed guardian seeks court authorization to consent on the person's behalf to treatment with a prescribed mood stabilizer or antipsychotic medication.  The guardian can seek such authority either at the initial hearing on the plenary guardianship or at a separate involuntary treatment hearing.  The protected person is entitled to an attorney ad litem in such proceedings, and the right attaches upon the petition being filed.  N.D. Cent. Code Ann. § 30.1-28-16(1).

Emergency Conservatorship

In March 2023, North Dakota enacted SB 2222, which adds a new section to chapter 30.1-29 that creates a procedure for appointment of an emergency conservator.  The provision appears to apply to both minors and adults.  A person interested in the estate of the person to be protected may file a petition to initiate such proceedings and request appointment as the conservator.  Upon filing of the petition, "the court shall appoint a guardian ad litem to advocate for the best interests of the estate of the person to be protected in the proceeding and any subsequent proceeding."  Unlike the other sections of this chapter, the provision does not specify that the GAL is an attorney.