"After the filing of a petition, the court shall . . . , unless the allegedly incapacitated person is represented by counsel, appoint an attorney to represent the person in the proceeding. The person so appointed may be granted the powers and duties of a guardian ad litem....." Ala. Code § 26-2A-102(b). "A person alleged to be incapacitated is . . . entitled to be represented by counsel, to present evidence, to cross-examine witnesses, including the court-appointed physician or other qualified person and any court representative and upon demand to trial by jury..." Ala. Code § 26-2A-102(c). Unless the person to be protected has chosen counsel, the court shall appoint an attorney to represent the person . . ." Ala. Code § 26-2A-135(b).
"When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client."Ala. R. of Professional Conduct R. 1.14(a). "A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest." Id at R. 1.14(b). The Court of Civil Appeals of Alabama has conclusively held that guardians ad litem are advocates for their wards and the role of the guardian ad litem in the adjudicatory process is not different from that of any other advocate" Alabama Ethics Opinion No 2000-02 (in a juvenile case). "In RO 90-67 the Disciplinary Commission stated that Rule 1.14 [of the Code of Professional Conduct] recognized that a lawyer may on occasion best serve a client by taking an action that, on first blush, might appear to be adverse to the client. In RO 95-03 the Disciplinary Commission reasoned that a lawyer confronted with such a dilemma must determine what is in the best interest of the client based on the lawyer's analysis of aspects of the situation, including opinions of medical experts, balancing the client's ability to communicate and to appreciate the serious decisions to be made."Ala. Ethics Opinion No 1995-06.
"...the legislature intended that the same person not be appointed to serve as both the attorney to represent the person to be protected and as the court representative" charged under the statute with the responsibility for interviewing the person to be protected and for reporting back to the court." In re Conservatorship of V.A.H., 802 So.2d 1099 (Ala. Civ. App. 2001). ". . . it is contemplated that the alleged non compos mentis may be represented by counsel. It is only when such person is not represented by counsel that the court is obligated under this section [Ala. Code 26-2A-102] to appoint a guardian ad litem to represent and defend such person. It is obvious that it is the duty of counsel to represent and protect the interest of the person alleged to be of unsound mind, just as if counsel was a guardian ad litem"Smith v. Smith, 48 So. 2d 546, 548 (Ala. 1950).
"This court has held that, under the Due Process Clause of the Fifth Amendment to the United States Constitution, which is extended to the states by the Fourteenth Amendment, an individual alleged to be incompetent is entitled to a hearing before a trial court may find him or her incompetent and appoint a guardian ad litem to represent his or her interest . . . However, we can find no Alabama statute, rule, or case requiring a trial court to conduct a hearing before it declines to appoint a guardian ad litem." Pepper v. Bentley, 59,So.3d 684 (Ala. Civ. App. 2008) (citing Wild v. Wild, 940 So 2.d 1037, 1040 (Ala. Civ. App. 2006).
Ala. Rules of Civil Procedure Rule 17(c) (minors or incompetent person); (d) (Guardian ad litem; how chosen)
- 26-2-2: http://codes.lp.findlaw.com/alcode/26/2/1/26-2-2
- 26-2A-1: http://codes.lp.findlaw.com/alcode/26/2A/1
- 26-2B-101: http://law.justia.com/codes/alabama/2012/title-26/chapter-2b/section-26-2b-101/
- 26-3-1: http://codes.lp.findlaw.com/alcode/26/3/26-3-1
- 26-5-1: http://codes.lp.findlaw.com/alcode/26/5/1/26-5-1
- 26-8-1: http://codes.lp.findlaw.com/alcode/26/8/1/26-8-1
- 26-8-20: http://codes.lp.findlaw.com/alcode/26/8/2/26-8-20
- 26-9-1: http://codes.lp.findlaw.com/alcode/26/9/26-9-1
- 26-9-7: http://codes.lp.findlaw.com/alcode/26/9/26-9-7
- 26-2A-102: http://codes.lp.findlaw.com/alcode/26/2A/2/2/26-2A-102
- 26-2A-135: http://codes.lp.findlaw.com/alcode/26/2A/2/3/26-2A-135
- Ala. R. of Professional Conduct 1.14: http://www.law.cornell.edu/ethics/al/narr/al_narr_1_14.htm#1.14
- Alabama Ethics Opinion No 2000-02: https://www.alabar.org/resources/office-of-general-counsel/formal-opinions/2000-02/
- Alabama Ethics Opinion 1995-06: https://www.alabar.org/resources/office-of-general-counsel/formal-opinions/1995-06/
- In re Conservatorship of V.A.H., 802 So.2d 1099 (Ala. Civ. App. 2001): http://www.leagle.com/decision/20011901802So2d1099_11883.xml/IN%20RE%20CONSERVATORSHIP%20OF%20V.A.H.
- Smith v. Smith, 48 So. 2d 546, 548 (Ala. 1950): https://www.courtlistener.com/opinion/1149971/smith-v-smith/
- Pepper v. Bentley, 59,So.3d 684 (Ala. Civ. App. 2008): http://caselaw.findlaw.com/al-court-of-civil-appeals/1089957.html
- Ala. Rules of Civil Procedure Rule 17(c): http://judicial.alabama.gov/library/rules/cv17.pdf