Right to counsel

Key_development Question_mark

Legislation, Guardianship/Conservatorship of Adults - Ward

In guardianship proceedings, “[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.

 

§ 30.1-28-03(4).  In cases involving an appointment of a conservator or other protective order because of minority, “[i]f, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to serve as guardian ad litem for the minor, giving consideration to the choice of the minor if fourteen years of age or older.”  § 30.1-29-07(1).  The statute notes that:

 

The duties of a guardian ad litem include: a. Meeting, interviewing, and consulting with the person to be protected regarding the conservatorship proceeding, including explaining the purpose for the interview in the language, mode of communication, and terms the person is most likely to understand, the nature and possible consequences of the proceeding, the rights to which the person is entitled, and the legal options available, including the right to retain an attorney to represent the person; b. Advocating for the best interests of the person to be protected. The appointed attorney serving as guardian ad litem may not represent the person in a legal capacity; c. Ascertaining the views of the person to be protected concerning the proposed conservator, the powers and duties of the proposed conservator, the proposed conservatorship, and the scope and duration of the conservatorship; d. Interviewing the person seeking appointment as conservator; e. Obtaining any other relevant information; f. Submitting a written report to the court containing the guardian ad litem’s response to the petition; and g. Attending the hearing unless excused by the court for good cause.

 

The same right to the appointment of an attorney as a guardian ad litem also exists in cases involving an appointment of a conservator or other protective order for reasons other than minority.  § 30.1-29-07(2).  Another provision, § 30.1-28-07(3), says that for modification/termination of 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 residence of the present guardian and 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.

Appointment of Counsel: categorical Qualified: yes