Keep civil rights in mind when representing a proposed protected person

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.
—The Oregon Rules of Professional Conduct, Rule 1.14(a).

The focus of and reason for a protective proceeding is an allegedly incapacitated person. When such a person is represented by counsel, the judicial system fails to work for him or her if the attorney ignores the client and instead imposes the attorney’s own “best interest” standard or aligns with the position of the court, visitor, or petitioner’s attorney. Under these circumstances, the respondent’s right to due process is denied. Therefore, the attorney for an allegedly incapacitated person should represent him or her as any other client.

Although the attorney may need to take more time and have much more patience to represent a respondent, difficulty in working with the client does not diminish the client’s rights. This is true even if the respondent is in denial that he or she has a condition that seriously impairs his or her abilities. In a situation where the attorney recognizes that the client’s version of reality is not reasonable or compelling, the attorney may acknowledge that he or she has heard what the client has to say and advise the client that the court is unlikely to agree with the client’s version of reality. If corroborating evidence would be helpful, then the attorney should explore this with the client. All of my clients are people with disabilities, and a few are extremely challenging. I find it useful to compare the time I must commit to addressing the challenges of working with my client (in the brief window of time that I represent him or her) with the time frame of my client’s challenges and how those challenges permeate his or her day-to-day life.

This article addresses the situation in which the allegedly incapacitated person is represented by an attorney. Unfortunately, the right to an attorney stated in ORS 125.070(2)(e)(A) is not supported by public funding. Whether to appoint an attorney for an allegedly incapacitated person who is indigent or otherwise unable to retain an attorney is left to the judge’s discretion. ORS 125.025(3)(b). There have been multiple legislative attempts to gain judicial funding for allegedly incapacitated people. They have failed, not because the nature of the proceeding is considered insufficiently serious, but because appointed counsel is deemed too costly. Probate judges in some counties maintain a list of attorneys whom they appoint for allegedly incapacitated people who object in protective proceedings.1 However admirable this effort may be, there remain serious due process concerns for the allegedly incapacitated people who do not have access to an attorney and thereby to the court system.

The whole purpose of a protective proceeding is to benefit the respondent. However, guardianships and conservatorships have a high potential for doing harm to the “protected person” by removing independence, dignity, and hope. Given the gravity of the proposed deprivation of civil rights of the respondent, at minimum the attorney for the respondent should protect:

1. The client’s right to object, including reviewing alternatives to the proposed guardianship or conservatorship
2. The client’s right to notice of what the proceedings entail and to be heard as to his values and expressed wishes
3. The client’s right to request a limited guardianship/conservatorship 

I have provided a worksheet to assist with the above review.

First, the respondent has a right to object. Generally, if an attorney has been appointed or retained to represent a respondent, the respondent has been able to communicate that he or she objects to the protective proceeding. The respondent’s objection should provide adequate minimum direction for his or her attorney. If, for example, a client is not able to provide names and addresses of witnesses or other helpful information that cannot be found otherwise, then the judge will have the opportunity to factor in this lack of evidence at the hearing.

The attorney should review whether alternatives to the guardianship or conservatorship exist or could be established. Many alternatives are less intrusive. For example, the existence of family, friends, and service providers who interact with the respondent may preclude the need for a guardian or conservator. A respondent who has a managed chronic mental health disorder and receives an inheritance that would affect receipt of public benefits may seek counsel to establish a special needs trust, rather than having a permanent conservatorship imposed.

Second, the client has the right to be notified of the purpose and course of the proceedings and to be heard. The attorney should communicate with the respondent about the day-to-day effect that a guardianship or conservatorship may have on his or her life. A guardianship or conservatorship can be a tremendous intrusion on the respondent’s personal autonomy. For example, many people with guardians lose the rights to decide where to live, what medical services they may receive, and when they can come and go. In addition, a protected person will likely pay for the fiduciary’s services as well as those of the fiduciary’s attorney(s). The respondent should be told that the relationship with the fiduciary, once established by the court, is permanent unless changed by the court. The respondent should be informed of his or her continuing right to object to the guardianship or conservatorship, explaining circumstances under which the court may change or terminate the terms of guardianship or conservatorship.

The respondent’s attorney must determine the client’s values and express wishes with regard to the fiduciary proceeding. Specifically, the attorney should determine the client’s preferences as to:

• a person to serve as a guardian or conservator
• health services
• living arrangements
• management of finances
• other care, comfort, and maintenance services
• arrangements after death

The attorney should ensure that the respondent is provided an opportunity to communicate in the most comfortable setting for him or her. For example, when the attorney meets with the respondent, the attorney may need to ensure that the client’s support person is present, may need to meet at the client’s home, or both. As with any other attorney-client relationship, the role of the respondent’s attorney is to listen to the client and provide advice, not to impose the attorney’s idea of what might be in the “best interests” of the client. The attorney, of course, should advise the respondent about all of the options as well as the benefits and drawbacks of pursuing each option.2

Third, the respondent’s attorney should find out whether the client considers a guardianship or conservatorship appropriate and, if so, whether the client’s goal is simply to limit it to specific areas. The respondent’s attorney should then find out what assistance the client has in making medical, financial, and other decisions and advocate for a limited guardianship on the respondent’s behalf. Limited guardianships are envisioned by strict adherence to ORS 125.300(1), which states:

A guardian may be appointed for an adult person only as is necessary to promote and protect the well-being of the protected person. A guardianship for an adult person must be designed to encourage the development of maximum self-reliance and independence of the protected person and may be ordered only to the extent necessitated by the person’s actual mental and physical limitations.

Unfortunately, for many of the “protected people” we hear from at Disability Rights Oregon, the effect of protective hearings is extremely negative. They express feelings of disbelief that they have essentially been sentenced to the equivalent of life in prison, with no hope for positive change. Some say that they feel they were treated like children, prisoners, or murderers.

Attorneys for respondents should represent them just as they would any other clients by protecting their rights to object, to be informed of the nature of the proceedings, to be heard, and to experience the least restrictive outcome. When respondents who become protected people feel that their dignity, voice, and hope have been denied, what has been protected?

Footnotes

1. From my work on the Multnomah County Probate Mediation Committee, my understanding is that Multnomah County appoints an attorney for every allegedly incapacitated person who objects to the protective proceedings. Further, my understanding is that Lane and Washington counties also maintain lists of attorneys to appoint for the allegedly incapacitated person.

2. Oregon Rules of Professional Conduct, Rule 2.1 indicates that the attorney’s role includes exercising independent professional judgment and rendering candid advice. In rendering advice, an attorney may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.