Adult Guardianship Statute:
Alaska Stat. 13-26.001 to .410; 13.27.010 to .495
Right to Counsel in Statute: Initial Guardianship Proceedings:
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings:
Right to Counsel Statututory Citation:
Alaska Stat. § 13-26.001 to .410; 13.27.010 to .495
Right to Counsel Definition in Statute:
After a petition for guardianship has been filed, "[t]he respondent is entitled to be represented by an attorney in the proceedings. If the respondent is financially unable to employ an attorney, the court shall appoint the office of public advocacy." Alaska Stat. § 13.26.106(b). "During an interview or a testing conducted under AS 13.26-090-13.26.150, a ward or respondent has the right to be accompanied by an attorney or expert of the ward’s or respondent’s choosing." Alaska Stat. § 13.26.109(c). The visitor must "explain and provide to the respondent a written statement of the following rights: (A) the respondent may communicate with an attorney or an expert in the field of the alleged incapacity before proceeding with the interview; (B) if the respondent does not have an attorney, an attorney...will be designated to advise and represent the respondent before and at any judicial hearings and the attorney may arrange for an examination and consultation with an expert; and (C) the respondent may, instead, employ an attorney or expert of the respondent's own choice." Alaska Stat. § 13.26.107(a). Before removing a guardian, changing the guardian’s responsibilities, accepting the resignation of a guardian, or ordering that a ward’s guardianship be changed or terminated, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian…may send a visitor…to observe conditions and report in writing to the court." Alaska Stat. § 13.26.125(c).
Advocacy Role of Counsel Defined in Statute:
Advocacy Role of Counsel Definition in Statute:
Alaska Stat. § 13.26.111: (a) "The principal duty of an attorney representing a ward or respondent is to represent the ward or respondent zealously Zealous representation includes at least (1) personal interviews with the ward or respondent; unless good cause exists, the first contact with the ward or respondent shall be at least two weeks before the hearing; (2) explaining, if possible, to the ward or respondent in terms that the ward or respondent can understand, the nature and possible consequences of the proceeding, the alternatives that are available, and the rights to which the ward or respondent is entitled; (3) securing and presenting evidence and testimony and offering arguments that would tend to protect the ward's or respondent's rights and that would tend to further the interests of the ward or respondent. (b) To the maximum extent possible, the ward or respondent shall remain responsible for determining the interests of the ward or respondent. However, the attorney for the [ward] may seek appointment of a [GAL] if the circumstances of AS 13.26.025 apply."
Professional Rules &/or Ethics Opinions:
Alaska’s Rule of Professional Conduct 1.14 is identical to the model rule. See AK R RPC Rule 1.14. "An attorney representing a client under guardianship for disability has an absolute duty to advocate his or her client's desires even if those desires conflict with client's best interests as viewed by the attorney." Alaska Bar Ethics Opinion No. 94-3. "When faced with a course of conduct that the lawyer believes to be in the disabled client's best interest to which the client objects, a lawyer must fulfill the obligations of the attorney-client relationship. Those obligations can only be fulfilled by explaining to the client as carefully as possible the ramifications of the course of treatment sought. The lawyer must disclose both the positive benefits which will come as well as the negative aspects of the treatment. The lawyer must do so to the best of his/her ability given the limitations of the client's understanding....While it is simple to say on a paternalistic level that the client is not competent to know what is in his own best interest, it is equally true that the client may not be able to articulate convincingly the reasons why the client does not wish to undergo the treatment. If the client cannot be persuaded, the lawyer's duty is to represent the interests of the disabled person. If the guardian ad litem persists in undertaking the treatment to which the client objects, it is the lawyer's duty to make his client's wishes known to the court. The disabled client has no one but his attorney to speak for him. Perhaps the client's wishes do not carry the day before the finder of fact. Nevertheless, a disabled individual has the right to be heard through counsel. Counsel has duty to zealously advocate on behalf of that individual." Id.
Other Case Law:
“It is clear that the legislature intended one of the primary underlying goals of guardianship for a developmentally disabled ward to be the promotion of the ward’s autonomy and individual development.…Nowhere in Alaska’s guardianship statutes…does the legislature suggest that the interests of family members should be considered in choosing a guardian. The best interests of the ward appear to be paramount.” In re Tammy J, 270 P.3d 805, 810-11 (Alaska 2012). The mother of son with a developmental disability had no due process right to appointed counsel on her appeal of trial court’s denial of her petition for review of her son’s guardianship “because the private interest at stake here—a parent’s desire to direct the affairs of her adult child—is so low in comparison with the adult child’s interests (in the development of ‘maximum self-reliance and independence of person’) and the state’s interest (in providing for the incapacitated person’s best interests).” In re Freddy A., 2012 WL 10588656.