Guardianship Laws

Adult Guardianship Statute: 
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: 
Right to Counsel Definition in Statute: 

If the ward, incapacitated person or person to be protected or someone on his behalf requests appointment of counsel or if the court determines at any time in the proceeding that the interest of the ward, incapacitated person or person to be protected are or may be inadequately represented, the court shall appoint an attorney to represent the person.

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

Nearly identical to model rule except for comment 7. "When a client’s capacity 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." Mass.R.Prof.C. Rule 1.14(a). "A client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting client's own well-being." Id. at comment 1. "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." Id. at comment 2. "[T]he 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." Id. at Comment 3. "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." Id. comment 4. If client is unable to make an adequately considered decision and if achieving client's expressed preferences would place client at risk of substantial harm, the attorney has four options. i) advocate client’s expresses preferences; ii) advocate the client’s expressed preferences and request the appointment of a GAL…to make recommendations to the court; iii) request the appointment of a GAL…to direct counsel in the representation; or iv) determine what the client’s preferences would be if she or she were able to make an adequately considered decision regarding the issue and represent the client in accordance with that determination. Id. at Comment 7. No relevant ethics opinions could be found. But see Opinions no. 80-4, 93-6 which deal with role of attorney for ward in commitment procedures and minors prior to the issuing of the current Rules of Professional Conduct.

Other Case Law: 

Striking counsel's appearance when no adversary proceedings had been initiated did not violate ward's due process rights. See Guardianship of Hocker, 791 N.E.2d 302 (Mass. 2003); Protecting ward's rights in guardianship proceedings requires a nonindigent ward, adjudicated incompetent to made medical decisions, be given the opportunity to demonstrate that she is competent to select and retain counsel of her own choosing. See Guardianship of Zaltman, 843 N.E. 2d 663 (Mass. App. Ct. 2006).

Discuss Guardianship or Supported Decision-Making?: