West Virginia

Guardianship Laws

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

W.Va. Code §§ 44A-2-7(a), 44A-4-6(c)

Right to Counsel Definition in Statute: 

"The court shall appoint legal counsel for the alleged protected person to make recommendations to the court that are in the best interests of the alleged protected person. In appointing legal counsel, the court shall consider any known preferences of the alleged protected person, or an alleged protected person may hire and pay for an attorney of his or her choice." WV ST § 44A-2-7(a). "In making a determination under this section [dealing with termination, revocation or modification of guardiahnship], the court shall appoint legal counsel for the protected person." WV ST § 44A-4-6(c). See also W.VA. Code § 44A-4-7 (“A hearing on a petition to terminate, revoke or modify shall be conducted with the same notice and in the same manner and the protected person shall have the same rights as the protected person would obtain at a hearing on a petition for the appointment of a guardian or conservator.)

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

Upon the filing of initial guardianship proceedings,"[t]he court shall appoint legal counsel for the alleged protected person to make recommendations to the court that are in the best interests of the alleged protected person. In appointing legal counsel, the court shall consider any known preferences of the alleged protected person, or an alleged protected person may hire and pay for an attorney of his or her choice." WV ST § 44A-2-7(a)" Legal counsel shall have the following major areas of concern: (1) Whether or not a guardian or conservator is needed; (2) limitation of the role of the guardian or conservator to the protected person's specific needs--e.g., personal supervisor, business affairs, medical consent only; (3) if needed, assure that the person or entity that will act in the best interest of the protected person is appointed; (4) if needed, assure the adequacy of the bond; and (5) if needed, assure consideration of proper placement." W. Va. Code § 44A-2-7(b). "In responsibly pursuing the major areas of concern set forth in subsection (b) of this section, counsel may perform any or all of the following: (1) Promptly notify the individual and any caretaker of the appointment of counsel; (2) contact any caretaker, review the file and all other relevant information; (3) maintain contact with the client throughout the case and assure that the client is receiving services as are appropriate to the client's needs; (4) contact persons who have or may have knowledge of the client; (5) interview all possible witnesses; (6) pursue discovery of evidence, formal and informal, including obtaining medical and financial records; (7) file appropriate motions, including temporary protective orders; (8) obtain independent psychological examinations, medical examinations, home studies, as needed; (9) advise the client on the ramifications of the proceeding and inquire into the specific interests and desires of the individual; (10) subpoena witnesses to the hearing; (11) prepare testimony for cross-examination of witnesses to assure relevant material is introduced; (12) review all medical reports; (13) apprise the decision maker of the individual's desires; (14) produce evidence on all relevant issues; (15) interpose objections to inadmissible testimony; (16) raise appropriate questions to all nominations for guardian and conservator and the adequacy of the bond; (17) take all steps to limit the scope of guardianship and conservatorship to the individual's actual needs, and make all arguments to limit the amount of the intervention; (18) ensure that the court considers all issues as to the propriety of the individual's current or intended housing or placement and that the limitations are set forth in the order; (19) inform the client of the right to appeal, and file an appeal to an order when appropriate; (20) file a motion for modification of an order or a petition for a writ of habeas corpus if a change of circumstances occurs which warrants a modification or termination upon counsel being reappointed by the court; and (21) otherwise zealously represent the interests and desires of the client while also reporting to the court what actions are in the best interests of the client." W. Va. Code § 44A-2-7(c).

Professional Rules &/or Ethics Opinions: 

"When a client's ability to make adequately considered decisions in connection with the representation is impaired,..the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." Rules of Prof. Conduct Rule 1.14. "[A] client lacking legal competence often has the ability to understand, deliberate upon, and reach conclusions about matters facing the client's own well being. Furthermore, to an increasing extent the law recognizes intermediate degrees of competence....The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. If the person has no legal guardian or legal representative, the lawyer often must act as de facto guardian. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representaive for decisions on behalf of the client." Id.at Comment.

Case Law Discussing Role of Counsel: 

"When a guardian ad litem is appionted to represent an adult, that guardian is charged with the duty 'to provide competent represenation to…[his] client, and to act with reasonable diligence and promptness in representing his client.' Encompassed in this duty is the guardian's obligation to effectively represent his client at every stage of the proceedings up toa nd including an appeal." Buckler v. Buckler, 195 W. Va. 705, 709 (1995) (quoting In re Jeffrey R.L., 190 W. Va. 24 (1993)). By failing to assess "his ward's emotional state, her ability to comprehend the nature of the legal proceedings, or her rights thereunder" the GAL "failed both in his duty to provide the court with adequate information and i his duty to adequately protect and advocate the interests of the" ward. Id. at 711.

Other Case Law: 

"There is no limitation contatined within the statute regarding the protected person's legal counsel's role. Significantly, the statute does not terminate the role of the legal counsel upon the appointment of a guardian or conservator; rather 44A-2-7(c)(20) specifically contemplates that the legal counsel 'may file a motion for modification of an order or a petititon for writ of habeus corpus...' The filing of such a motion would occur after the guardian or conservator was appointed." In re Dandy, 224 W. Va. 105, 110 (2009).

Other Important Info: 

At the initial hearing, the alleged protected person is entitled to “oppose the petition, to be represented by an attorney, to present evidence, to compel the attendance of witnesses and to confront and cross-examine all witnesses. If the alleged protected person is present at the hearing, the court or mental hygiene commissioner shall verbally inform the person of such rights, of the contents of the petition, and of the purpose and legal effect of the appointment of a guardian or conservator.” W. Va. Code 44A-2-9. The hearing is closed to the public. Id.

Discuss Guardianship or Supported Decision-Making?: 
Yes