Adult Guardianship Process - 4. Appointment of Counsel
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Appointment of Counsel
After a petition for guardianship of the person and/or property of an alleged disabled person is filed and if the alleged disabled person does not already have an attorney, the court will appoint an attorney for the disabled person. This is required to ensure that the alleged disabled person’s due process rights are not violated during the guardianship proceedings. This is a particular concern for guardianship proceedings as the alleged disabled person faces significant and usually permanent loss of his basic rights and liberties.
Read the Law: Md. Code, Estates & Trusts Article § 13-211(b) and § 13-705(d)(1)
Read the Rules: Md. Rule 10-106
Attorney Responsibilities
The attorney for the alleged disabled person has a wide range of responsibilities. This includes explaining the proceedings, advocating for the alleged disabled person, maintaining client privileges, and ensuring that the court follows proper procedures.
A court-appointed attorney may decide whether to request the presence of the physicians who prepared physician certificates, request the appointment of an independent investigator, request a closed hearing, assert or waive his client’s right to be present at the hearing, or assert or waive a jury trial.
Read the Law: Md. Code, Estates & Trusts §13-705(e)
Read the Rule: Md. Rules 10-105; 10-205
The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. The Maryland Rules of Professional Conduct require that when representing a client under a disability, an attorney is, as far as reasonably possible, to maintain a normal client-lawyer relationship with the alleged disabled person.
The law recognizes intermediate degrees of competence and that there are often instances in which a client with diminished capacity has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.
Read the Rule: Md. Rule 19-301.14
Read the case: In re: Sonny E. Lee, 132 Md. App. 696 (Court of Special Appeals 2000)
Independent Investigator
The court may appoint an independent investigator to investigate the facts of the case and report to the court. This investigator is not an advocate for the disabled person or any other party to the proceeding. The fee of a court-appointed investigator is paid from the guardianship estate, or otherwise as the court directs.
Read the Rule: Md. Rule 10-106.2
Attorney’s Fees
Maryland law provides that fees for the appointed counsel for the alleged disabled person be paid out of the guardianship estate. For guardians of the property as well as any attorney providing legal services to a minor or disabled person, you must ask the court to approve any legal fees in excess of $50 before payment from a guardianship estate. If the alleged disabled person is indigent, the State will pay the fee in proceedings to establish (1) guardianship of the person or (2) guardianship of the person and property.
Maryland law allows, but does not require, a court to approve legal fees incurred by an interested person or the petitioner, excluding government agencies paying benefits to the alleged disabled person, a local department of social services, and any agency eligible to serve as the guardian of the disabled person. In making its decision to allow an interested party’s legal fees to be paid from the guardianship estate, the court will consider the disabled person’s financial resources and needs as well as whether there was substantial justification for filing the guardianship petition.
Ultimately, this decision is left solely to the discretion of the court. What this means in very practical terms is that the petitioner, and any interested persons intervening in guardianship proceedings, must be prepared to be responsible for their own attorneys’ fees with the goal, but not with the certainty, that these will someday be reimbursed from the guardianship estate.
Read the Law: Md. Code, Estates and Trusts § 13-704, § 13-705(d), § 15-102
Read the Rule: Md. Rule 10-106