Adult Guardianship Statute:
Colo. Rev. Stat.§ 15-14-101 to -745; 15-14.5-101 to -503
Right to Counsel in Statute: Initial Guardianship Proceedings:
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings:
Right to Counsel Statututory Citation:
Colo. Rev. Stat. §§ 15-14-305(2), -318(3)
Right to Counsel Definition in Statute:
"The court shall appoint an attorney to represent the respondent if (a) requested by the respondent; (b) recommended by the visitor; or (c) the court determines the respondent needs representation. See Colo. Rev. Stat. § 15-14-305(2). "The visitor shall interview the respondent in person and, to the extent the respondent is able to understand . . . Inform the respondent of the right to employ and consult with a laywer at the respondent's own expense and the right to request a court-appointed lawyer." Colo. Rev. Stat. § 15-305(3)(c). "Except as otherwise ordered by the court for good cause, the court, before terminating a guardianship, shall follow the same procedures to safeguard the rights of the ward as apply to a petition for guardianship. . . . [T]he guardian may file a motion for instructions regarding any relevant matter including . . . Whether an attorney, guardian ad litem, or visitor should be appointed for the ward. . . . Nothing . . . shall prevent . . . The court, on its own motion and regardless of whether the guardian has filed a report or request for instructions, . . . form appointing an attorney, guardian ad litem, visitor, or professional evaluator." Colo. Rev. Stat. § 15-14-318(3) & 3.5.
Advocacy Role of Counsel Defined in Statute:
Professional Rules &/or Ethics Opinions:
Colo. Prof. Conduct R. 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."
Case Law Discussing Role of Counsel:
Counsel must counsel and represent the incapacitated person's legal interests. Dep't of Institutions v. Carothers, 821 P2d 891 (Colo. Ct. App. 1991). See also Estate of Milstein v. Ayers, 955 P.2d 78, 83 (Colo. App. 1998) (holding that GAL and independent counsel serve such differing interests that the GAL could not be an adequate substitute for private counsel).