District of Columbia

Guardianship Laws

Adult Guardianship Statute: 

D.C. Code §§ 21- 2001 to -2077; 21-2401.1 to -2405.3

Right to Counsel in Statute: Initial Guardianship Proceedings: 
Yes
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Yes
Right to Counsel Statututory Citation: 
Right to Counsel Definition in Statute: 

Unless the allegedly incapacitated individual is represented by counsel, the court shall appoint an attorney to represent the individual in the proceeding. See D.C. Code § 21-2041(d). "A ward seeking termination is entitled to the same rights and procedures as in an original proceeding for appointment of a guardian." D.C. Code § 21-2049(b). "Before appointing a successor guardian, or ordering that a ward's incapacity has terminated, the court shall follow the same procedures to safeguard the rights of the ward that apply to a petition for appointment of a guardian."D.C. Code § 21-2049(c).

Advocacy Role of Counsel Defined in Statute: 
Yes
Advocacy Role of Counsel Definition in Statute: 

"The duty of counsel for the subject of a guardianship or protective proceeding is to represent zealously that individual’s legitimate interests. At a minimum, this shall include: (1) Personal interviews with the subject of the intervention proceeding; (2) Explaining to the subject of the intervention proceeding, in the language, mode of communication, and terms that the individual is most likely to understand, the nature and possible consequences of the proceeding, the alternatives that are available, and the rights to which the individual is entitled; and (3) Securing and presenting evidence and testimony and offering arguments to protect the rights of the subject of the guardianship or protective proceeding and further that individual’s interests."D.C. Code § 21-2033(b).

Professional Rules &/or Ethics Opinions: 

DC Prof. Conduct Rule 1.3(a): A lawyer shall represent a client zealously and diligently within the bounds of the law. Comment: [1] The duty of a lawyer, both to the client and to the legal system, is to represent the client zealously within the bounds of the law, including the Rules of Professional Conduct and other enforceable professional regulations, such as agency regulations applicable to lawyers practicing before the agency. This duty requires the lawyer to pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and to take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client. However, a lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued. DC Prof. Conduct Rule 1.14:(a) The lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. Comments: [1] Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. [2] The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. [3] The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client’s behalf. [4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. [6] In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

Case Law Discussing Role of Counsel: 

In re Martel, 10 A.3d 1158 (D.C. 2010), INT 123-01 D.C. App. No. 09-PR-291 (December 2, 2010) ("In sum, the language used in the Act as a whole and our case law support an interpretation that (at least when counsel believes that the client ward is unable herself to determine her legitimate interests, and there is no indication that she was able to determine, and that she articulated, those interests in the past) the requirement of section 21-2033(b) that counsel zealously advocate the subject's 'legitimate interests' may be satisfied by counsel's advocacy for what the GAL has determined to be in the ward's best interest (which may or may not overlap with the ward's expressed wishes)."); Sullivan v. District of Columbia, 829 A.2d 221, 226 (2003) ("The plain language . . . of the statute . . . precludes a guardian ad litem from acting as counsel in an intervention proceeding . . . Counsel's duty differs from that of the guardian ad litem . . . it is the duty of counsel to 'represent zealously [the alleged incapacitated person's] legitimate interests.")

Other Case Law: 

In re Orshansky, 804 A.2d 1077, 1094 (D.C. 2002) ("A principal theme of the Guardianship Act is that the wishes of the subject of an intervention proceeding regarding the decisions to be made are entitled to consideration and respect -- notwithstanding that the subject of the proceeding is incapacitated.")

Other Important Info: 

"To the maximum extent possible the subject of the proceeding shall remain responsible for determining his or her legitimate interest. In cases where a guardian ad litem has been appointed because the subject is unconscious or otherwise wholly incapable of determining his or her interests, even with assistance, counsel shall follow the guardian ad litem's determination of the subject's interests. In all other cases, counsel shall to the maximum extent possible ascertain directly the subject's determination of his or her legitimate interest." D.C. SCR-PD 305(a)(6). "D.C. Code § 21-2031 and this Rule require counsel to act as a zealous advocate for the subject and not as a guardian, independent investigator or objective finder of fact." Comment to D.C. SCR-PD 305(a)(6).

Discuss Guardianship or Supported Decision-Making?: 
Yes