Guardianship Laws

Adult Guardianship Statute: 

Haw. Rev. Stat. Ann. §§ 551-1 to -2; 551-21 to -64; 551A-1 to -9; 551D-1 to -7

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

Haw. Rev. Stat. Ann. §§ 560:5-305(b), -305(c)(3), -318(c).

Right to Counsel Definition in Statute: 

"The court shall appoint a lawyer to represent the respondent in [a guardianship] proceeding if: (1) Requested by the respondent; (2) Recommended by the kokua kanawai; or (3) the court determines that the respondent needs representation." Haw. Rev. Stat. Ann. §§ 560:5-305(b). "Except as otherwise ordered by the court for good cause, the court, before terminating a guardianship, shall follow the same procedures to safegaurd the rights of the ward that apply to a petition for guardianship." Haw. Rev. Stat. Ann. §§ 560:5-318(c).

Advocacy Role of Counsel Defined in Statute: 
Not stated
Professional Rules &/or Ethics Opinions: 

Haw. R. of Prof Conduct, Rule 1.14. “(a) When a client's ability to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken, and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6 of these Rules. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6 to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. COMMENTS: [1] The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severely incapacitated person may have no power to make legally binding decisions. 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. . . . So also, it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. [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] . .. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must 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…

Other Case Law: 

"The due process of law clause in the Fifth Amendment to the Federal Constitution does not require a jury trial in a proceeding under Hawaii statutes for appointment of guardian of the estate of an insane person."Ward v. Booth, 197 F.2d 963 (9 Cir. 1952). "A person for whom a guardian is to be appointed because of alleged mental incompetency must have reasonable notice and an opportunity to be heard even though the judge in probate is deemed to have inherent power to make an appointment of the guardian without application therefore by relatives or friends."In re Brash's Estate, 15 Haw. 372 (1904).

Other Important Info: 

"Upon receipt of a petition to establish a guardianship, the applicable court shall set a date and time for hearing the petition and may appoint a kokua kanawaii. The duties and reporting requirements of the kokua kanawaii shall be limited to the relief requested in the petition. The kokua kanawaii shall . . . inform the respondent of the right to employ and consult with a lawyer at the respondent's own expense and the right to request a court-appointed lawyer. . ." Haw. Rev. Ann. § 560:5-3-5 (appears consistent with role of a GAL). "Whenever an infant or incompetent person has a guardian, whether appointed as to that person or property, such guardian appointed as to property, or if no guardian has been appointed as to property, then such guardian appointed as to that person, may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed guardian that person may sue by that person's next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person." Hawai'i Rules of Civil Procedure Rule 17.

Discuss Guardianship or Supported Decision-Making?: