Guardianship Laws

Adult Guardianship Statute: 
Right to Counsel in Statute: Initial Guardianship Proceedings: 
Yes, Conditional
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Not stated
Right to Counsel Statututory Citation: 

Mont. Code Ann. §§ 72-5-315(2),72-5-325(3)

Right to Counsel Definition in Statute: 

"Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity. The allegedly incapacitated person may have counsel of the person's own choice or the court may, in the interest of justice, appoint an appropriate official or order the office of state public defender, to assign counsel pursuant to the Montana Public Defender Act, Title 47, Chapter 1, to represent the person in the proceeding." Mont. Code Ann. § 72-5-315 (2).

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

The attorney has the duties of the GAL. See Mont. Code Ann. § 72-5-315(2).

Professional Rules &/or Ethics Opinions: 

MRPC Rule 1.14 "(a) 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. (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."

Other Case Law: 

An adult with a mild intellectual disability had his due process rights violated when she was not given notice of hearing for temporary guardianship, thereby precluding opportunity to object to the proceeding. In re Matter of Klos, 943 P.2d 1277 (Mont. 1997); In absence of service on a [person with mental illness] of notice of time and place of hearing on guardianship petition, the district court was without authority to appoint a guardian for [the] person's person and estate, and the appointee was a mere guardian de facto. See Grauman v Chambers, 198 P.2d 629 (Mont. 1948). A legal guardian does not have the power to file a marital dissolution proceeding on behalf of an incapacitated ward. See In re Marriage of Denowh ex rel. Deck, 78 P. 3d 63 (Mont. 2003).

Other Important Info: 

"Once the issue of incompetency is raised, it is the duty of the court to determine whether the party is competent and to appoint a guardian ad litem if the party is incompetent; absent that determination, an adjudication affecting the rights of the alleged incompetent cannot stand." State ex rel. Perman v. District Court of Thirteenth Judicial Dist., In and For Yellowstone Country, 690 P.2d 419 (Mont. 1984). "The following representatives may sue or defend on behalf of a minor or incompetent person: (A) a general guardian; (B) a committee; (C) a conservator; (D) a like fiduciary." M.R.Civ.P Rule 17. "A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend, or by a guardian ad litem. The court must appoint a guardian ad litem--or issue another appropriate order--to protect a minor or incompetent person who is unrepresented in an action." M.R.Civ.P Rule 17.

Discuss Guardianship or Supported Decision-Making?: