Adult Guardianship Statute:
Minn. Stat. 252A.01 to .21; 524.5-101 to -903
Right to Counsel in Statute: Initial Guardianship Proceedings:
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings:
Right to Counsel Statututory Citation:
Minn. Stat. §§ 524.5-304(b), 524.5-317(c)
Right to Counsel Definition in Statute:
"A proposed ward has the right to be represented by counsel at any proceeding under this article. The court shall appoint counsel to represent the proposed ward for the initial proceeding held pursuant to section 524.5-307 if neither the proposed ward nor others provide counsel unless in a meeting with a visitor the proposed ward makes an informed decision in writing to specifically waive the right to counsel." Minn. Stat. § 524.5-304(b). "Counsel must be appointed immediately after any petition under this article is served under section 524.5-308. Counsel has the full right of subpoena. In all proceedings under this article, counsel shall: (1) consult with the proposed ward before any hearing; (2) be given adequate time to prepare for all hearings; and (3) continue to represent the person throughout any proceedings under section 524.5-307, provided that such appointment shall expire upon the expiration of the appeal time for the order appointing guardian or the order dismissing a petition, or upon such other time or event as the court may direct." 524.5-304(c). "The court need not appoint counsel to represent the proposed ward on a voluntary petition, and the court may remove a court-appointed attorney at any time if the court finds that the proposed ward has made a knowing and intelligent waiver of the right to counsel or has obtained private counsel." Id. "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." Minn. Stat. § 524.5-317.
Advocacy Role of Counsel Defined in Statute:
Professional Rules &/or Ethics Opinions:
"When a client's capacity to make adequately considered decisions in connection with a representation is diminished…the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." Minn. of Prof. Conduct, Rule 1.14(a). "A client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being." Id. at comment 1. "The fact that a client suffers an impairment 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 comment 2. "the 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 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 Comment 4.
Other Important Info:
The visitor must: explain to the respondent “the substance of the petition; the nature, purpose, and effect of the proceeding; the respondent’s rights at the hearing; and the general powers and duties of a guardian;” determine the respondent’s views about guardianship; inform the respondent about the right to counsel; and inform the respondent that all costs and expenses will be paid from the respondent’s estate. Minn. Stat. § 524.5-304(d).