Adult Guardianship Statute:
Ohio. Rev. Code. Ann. 2111.10 to .51; 5123.55 to .59
Right to Counsel in Statute: Initial Guardianship Proceedings:
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings:
Right to Counsel Statututory Citation:
Ohio Rev. Code Ann. §§ 2111.02(C)(7)(a), .02(C)(7)(d), .49(C)
Right to Counsel Definition in Statute:
Right to Counsel: If the alleged incompetent is indigent, upon the alleged incompetent’s request, she has “the right to have counsel and an independent expert evaluator appointed at the court’s expense.” Ohio Rev. Code Ann. §§ 2111.02 (C)(7)(d).“If the hearing concerns the appointment of a guardian or limited guardian for an alleged incompetent, the alleged incompetent has…the right to be represented by independent counsel of the alleged incompetent’s choice. Ohio Rev. Code Ann. § 2111.02(C)(7)(a). “If the guardianship, limited guardianship, or standby guardianship decision is appealed, the right to have counsel appointed…at court expense.” Ohio Rev. Code Ann. § 2111.02(C)(7)(d).“Except as provided in this division, for any guardianship, upon written request by the ward, the ward’s attorney, or any other interested party made at any time after the expiration of one hundred twenty days from the date of the original appointment of the guardian, a hearing shall be held in accordance with section 2111.02 of the Revised Code to evaluate the continued necessity for guardianship.” Ohio Rev. Code Ann. § 2111.49(C).
Advocacy Role of Counsel Defined in Statute:
Professional Rules &/or Ethics Opinions:
Identical to Model Rule 1.14. “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.” OH ST RPC Rule 1.14(a) (emphasis in original). “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 Comment 1. ʺThe 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 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 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. No relevant ethics opinions.
Case Law Discussing Role of Counsel:
The duty of a lawyer to his client and the duty of a guardian ad litem to his ward are not always identical and, in fact, may conflict. The role of guardian ad litem is to investigate the ward’s situation and then to ask the court to do what the guardian feels is in the ward’s best interest. The role of the attorney is to zealously represent his client within the bounds of the law.” In re Baby Girl Baxter, 17 Ohio St.3d 229, 232 (1985) (superseded by statute on other grounds).“
Other Case Law:
Ohio law authorizes probate court to appoint a guardian of an incompetent person “[w]hen found necessary.” No evidence was introduced which demonstrated the necessity of a guardianship. Attorney’s failure to address the necessity factor or exploit the lack of evidence concerning necessity constituted ineffective assistance of counsel. In Matter of Sharp v. Sharp, 96-CA-26, 1997 WL 52933 (Ohio Ct. App. Jan. 1997). Ohio statute grants the probate court discretionary authority to appoint a prospective ward counsel. No error in not appointing ward counsel. In re Guardianship of Biro, 2011-Ohio-1834, 2011 WL 1457104 (Ohio Ct. App. Apr. 2011). Appellant failed to establish that there is a clear legal right and clear legal duty enforceable in mandamus that the safeguards and procedures afforded to alleged incompetents in initial guardianship proceedings (specifically, the right to counsel) were incorporated into a hearing to evaluate the continued necessity for guardianship. State ex rel. McQueen v. Cuyahoga Cty, 2012-Ohio-1839 2012 WL 1454692 *2-4(Ohio Ct App. 2012). Alleged wards wrote letter to court requesting counsel. Visitor informed them that since they were not indigent they were not entitled to court-appointed counsel and must procure counsel on their own. The wards denied writing the letter requesting counsel. At their hearing, alleged wards were not represented by counsel and the court made no inquiry into their desire to obtain counsel or their financial ability to do so. Court found this was error, as wards did not validly waive their right to counsel. The trial court should have inquired into the matter to ensure that the wards were not confused as to their rights. In re J.W. 2011-Ohio-5191, 20122 WL 4600861 (Ohio Ct. App. 2011). “Only an alleged incompetent, as opposed to a minor, has the right to counsel.” In re Guardianship of P.D., 2009-Ohio-3113, 2009 WL 1830784 *7 (Ohio Ct. App. 2009). No authority giving an applicant for the appointment as guardian the right to counsel. R.C. Chapter 2111 only gives the alleged incompetent the right to counsel. Thus, applicant for the appointment as guardian’s allegations of ineffective assistance of counsel are without merit. In re Guardianship of Florkey, 2008-Ohio-2994, 2008 WL 4384004 *3 (Ohio Ct. App. 2008). At initial guardianship hearing, magistrate continued the hearing so that the alleged ward could obtain counsel. At the continued hearing, six weeks later, the alleged ward appeared without counsel. Court held that court’s failure to appoint counsel does not necessitate reversal of the guardianship appointment. “The opportunity to obtain legal counsel was [the alleged ward’s] choice to make, as was her choice not to obtain or request counsel for the hearing. Additionally, there is nothing in the record to suggest that [the alleged ward] was indigent and required court appointment of legal counsel or that she required such an appointment for any other reason.” In re Guardianship of Bush, 2003-Ohio-5440, 2003 WL 22332941 *3 (Ohio Ct. App. 2003). The rights afforded to alleged incompetent persons are “meaningless if they exist only upon initiation by the alleged incompetent person. This is so because it is preposterous to assume that a person who has such mental illness and/or defect that a guardian is necessary to manage their day-to-day affairs, nonetheless has sufficient capacity to waive the legal right to counsel.” Bush, 2003-Ohio-5440 *5 (Vukovich, J., dissenting). “It is incumbent on the probate court to explain the rights of the alleged incompetent and to inquire whether there is an understanding of them.” Id. “A condition precedent to a valid waiver is awareness and understanding.” Despite appellant’s diagnosis of “dementia, Alzheimer’s type” and “depression and schizophrenia disorder,” “the probate court did not attempt to explain any rights and failed to even inquire if appellant desired to proceed without legal counsel.” Id.