50 State Review
“The Right to an Attorney in Guardianship Proceedings”
If you faced a guardianship petition, do you know if you would have a right to an attorney? Or whether the attorney would be allowed to argue for what you want?
The Washington, D.C., Guardianship Law says that adults in that situation can have an attorney, but the attorney must advocate for their “legitimate interests.” In a 2010 decision called In Re Martel, the D.C. Court of Appeals said that this duty can be met by an attorney advocating for the person’s “best interests,” as determined by a court-appointed guardian ad litem – even if the person disagrees.
In other words, if the person does not want a guardian, but the guardian ad litem says a guardian is needed, that person’s own attorney can argue against the person’s wishes and say to the court: “My client should lose.” So, the person whose rights are at stake may have no one to fight for him or her.
Quality Trust is working to fix this problem. In the summer of 2012, we researched the guardianship laws in all 50 states to see if we could find a better system. We reviewed cases, regulations, ethical standards, and other requirements on the right to an attorney in guardianship cases and whether attorneys were allowed to argue for their clients’ expressed wishes, rather than what some else says is their “best interests.”
Want to know how the system works in your state? Slect the state from the list below to learn more!
Note of Appreciation: Quality Trust would like to thank its legal interns – Matthew Casale, Julie Case, Morgan Given, Susanne Obrock, and Amanda Nagrotsky – whose dedication and effort made this review possible.