The right to legal counsel for any person for whom a temporary guardian or guardian of the person is sought shall be absolute and unconditional. If the proposed ward does not have his or her own counsel, the court shall appoint counsel for the proposed ward immediately upon the filing of a petition for guardianship.
"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." NH R. Prof. Conduct 1.14(a). "ABA Comment 4 says that the lawyer would "ordinarily look to" any legal representative (Such as a guardian) for decisions. The situations in which the client's legal representative should not be the person making decisions are limited to two situations: where the lawyer represents the client in a matter against the interests of the legal representative or where that legal representative instructs the lawyer to act in a manner that will violate that person's legal duties toward the client." Id. at Comment 4. "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 ABA model Code 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 ABA Model Code 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 ABA Model Code 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. at ABA Model code comment 4. No relevant ethics opinions.
Ward denied full assistance of legal counsel when attorney acted in the ward's best interest. Court determined counsel "blurred the boundaries" between role of counsel, who is bound by ethical rules to zealously represent his client, and the role of the GAL, who must act "in the best interest" of the proposed ward. In re Guardianship of Henderson, 838 A.2d 1277, 1278-79 (N.H. 2003).
Section entitled "Duties of Counsel" was repealed in 1981. N.H. Rev. Stat. Ann. § 464-A:7, Repealed 1981.
- 464-A:1 to :47: http://www.gencourt.state.nh.us/rsa/html/XLIV/464-A/464-A-mrg.htm
- 547-B:1 to :8: http://nhrsa.org/law/chapter/547-b/
- 464-A:6(I): http://www.gencourt.state.nh.us/rsa/html/XLIV/464-A/464-A-6.htm
- NH R. Prof. Conduct 1.14(a): http://www.courts.state.nh.us/rules/pcon/pcon-1_14.htm
- In re Guardianship of Henderson, 838 A.2d 1277, 1278-79 (N.H. 2003): http://www.courts.state.nh.us/supreme/opinions/2003/hende172.htm