Establishment

Procedural Protections

Procedural protections are critical in guardianship cases. The Uniform Guardianship and Protective Proceedings Act (UGPPA 1997) offers two alternatives for states to consider in terms of the right to counsel in guardianship proceedings:

Alternative 1:

The court shall appoint a lawyer to represent the respondent in the proceeding if:

(1) requested by the respondent;

(2) recommended by the [visitor]; or

(3) the court determines that the respondent needs representation. (§ 305(b))

Alternative 2:

Unless the respondent is represented by a lawyer, the court shall appoint a lawyer to represent the respondent in the proceeding. (§ 305(b))

The National Academy of Elder Law Attorneys (NAELA), in their public policy guidelines, supports the following aspects of procedural due process concerning adult guardianship: (1) timely notice in plain language, including information about the rights that are subject to being lost and the individual's rights at the hearing; (2) requirement for the individual to be present at the hearing unless there is good cause, and provisions for hearing accommodations; (3) mandatory court appointment of counsel at or before notice to act as zealous advocate for the individual, and court payment of fees for indigent respondents; and (4) hearing rights including right to compel attendance of witnesses, cross-examine, request a jury trial, and appeal the decision.

The National Probate Court Standards (Standard 3.3.5) states that a court shall appoint a lawyer to represent the respondent in a protective proceeding if at least one of the following conditions exist:

1. The respondent requests an attorney.

2. The court visitor recommends the appointment of an attorney.

3. The court determines that the respondent needs representation.

4. Representation is required by law.

The Standards indicate that the role of counsel is that of an advocate for the respondent. Counsel should consider the respondent's prior directions and expressed desires and opinions, if known. In cases where the respondent's position is not known, the counsel should request the court to consider appointment of a Guardian ad litem to represent the respondent's best interest.

Resources