Right to counsel

Key_development Question_mark

06/18/2023, Legislation, Guardianship/Conservatorship of Adults - Protected Person

The court must appoint an attorney ad litem to represent the proposed ward's "interests" in guardianship appointment proceedings, Tex. Estates Code Ann. § 1054.001, as well as to represent the ward's interests in guardianship modification and termination matters, unless the ward has retained an attorney. Tex. Estates Code Ann. § 1202.101. In In re Guardianship of Glasser, 297 S.W.3d 369, 377 (Tex. App. 2009), a court found that a judge may appoint more than one attorney for a proposed ward if the judge deems it necessary, such as if the litigation is especially contentious.


Additionally, Tex. Estates Code § 1054.007 gives the judge discretionary power to appoint an attorney ad litem in any guardianship proceeding for an incapacitated person or another person who has a legal disability; a “proposed ward”; a nonresident; an “unborn or unascertained person”; or an “unknown or missing potential heir.” 


Until enactment of SB 1624 in 2023, it was unclear whether the term "interests" under the above statutes was limited to best interests or if it also included the ward or proposed ward's legal interests.  But the bill modified the language of these statutes to provide that the representation "includ[es] the ward's [or proposed ward's] expressed wishes."  Despite this change, representation that includes the respondent's wishes does not necessarily require advocating for those wishes; it could mean that the attorney must simply present the respondent's wishes to the court.  Accordingly, the right to counsel is considered qualified.


Prior to SB 1624, Tex. Estates Code § 1054.006 provided that, if a ward or proposed ward retains their own attorney, the court may dismiss the attorney ad litem.  However, under the new law, the court is required to dismiss the attorney ad litem where a ward or proposed ward has retained their own counsel.  This is true unless through "the motion of a party" or "on the court's own motion," a hearing is held at which "the court finds by a preponderance of evidence that the ward or proposed ward does not understand the guardianship proceeding or the purpose for which the attorney was retained," in which case "the court may appoint an attorney ad litem..." See Tex. Estates Code § 1054.006(b)-(c).


Finally, under Tex. Health and Safety Code § 613.004(c), the court must appoint an attorney ad litem and a guardian ad litem to represent the ward's interests if the guardian petitions the court (pursuant to § 613.003) for an order authorizing the ward to donate a kidney to an immediate family member. 

Appointment of Counsel: categorical Qualified: yes