Right to counsel

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Legislation, Guardianship/Conservatorship of Adults - Ward

In guardianship proceedings, Utah Code Ann. § 75-5-303 provides:

 

(2) [u]pon the filing of a petition . . . unless the allegedly incapacitated person has counsel of the person's own choice, the court shall appoint an attorney to represent the person in the proceeding the cost of which shall be paid by the person alleged to be incapacitated.  If the court determines that the petition is without merit, the attorney fees and court costs shall be paid by the person filing the petition.

 

(3)  The legal representation of the incapacitated person by an attorney shall terminate upon the appointment of a guardian, unless:

(a)  there are separate conservatorship proceedings still pending before the court subsequent to the appointment of a guardian;

(b)  there is a timely filed appeal of the appointment of the guardian or the determination of incapacity; or

(c)  upon an express finding of good cause, the court orders otherwise.

 

(5)

(d) Counsel for the person alleged to be incapacitated, as defined in Subsection 75-1-201(22), is not required if:

(i)  the person is the biological or adopted child of the petitioner;

(ii)  the value of the person’s entire estate does not exceed $20,000 as established by an affidavit of the petitioner in accordance with Section 75-3-1201;

(iii)  the person appears in court with the petitioner;

(iv)  the person is given the opportunity to communicate, to the extent possible, the person’s acceptance of the appointment of petitioner; and

(v)  the court is satisfied that counsel is not necessary in order to protect the interests of the person.

 

If the court determines the guardianship petition has merit, the petitioner shall be entitled to reasonable attorney fees and court costs incurred in bringing, prosecuting, or defending the petition from the incapacitated person. However, the court is not required to appoint counsel "if the case is uncontested and the ward's incapacity is not at issue."  Because Utah Code Ann. § 75-5-307(3) (LexisNexis 2012) specifies that the same procedures applicable to guardianship establishment proceedings also applies to review/termination proceedings, the right to appointed counsel should apply as well.

Appointment of Counsel: categorical Qualified: no