§ 3065. Counsel

(a)(1) The respondent shall have the right to be represented by counsel of his or her own choosing at any stage of a guardianship proceeding. Unless a respondent is already represented, the court:

(A) shall appoint counsel for the respondent when an initial petition for guardianship is filed;

(B) shall appoint counsel for the respondent in any subsequent proceeding if the respondent or a party requests appointment in writing; and

(C) may appoint counsel for the respondent on the court’s initiative in any subsequent proceeding.

(2) Appointed counsel shall have the right to withdraw upon conclusion of the proceeding for which he or she has been appointed.

(b) Counsel shall receive a copy of the petition upon appointment and copies of all other documents upon filing with the court. Counsel shall consult with the respondent prior to any hearing and, to the maximum extent possible, explain to the respondent the meaning of the proceedings and of all relevant documents. Counsel for the respondent shall act as an advocate for the respondent and shall not substitute counsel’s own judgment for that of the respondent on the subject of what may be in the best interests of the respondent. Counsel’s role shall be distinct from that of a guardian ad litem if one is appointed. At a minimum, counsel shall endeavor to ensure that:

(1) the wishes of the respondent, including those contained in an advance directive, as to the matter before the court are presented to the court;

(2) there is no less restrictive alternative to guardianship or to the matter before the court;

(3) proper due process procedure is followed;

(4) no substantial rights of the respondent are waived, except with the respondent’s consent and the court’s approval, provided that the evaluation and report required under section 3067 of this title and the hearing required under section 3068 of this title may not be waived;

(5) the petitioner proves allegations in the petition by clear and convincing evidence in an initial proceeding, and applicable legal standards are met in subsequent proceedings;

(6) the proposed guardian is a qualified person to serve or to continue to serve, consistent with section 3072 of this title; and

(7) if a guardian is appointed, the initial order or any subsequent order is least restrictive of the personal freedom of the person under guardianship consistent with the need for supervision.

(c) Respondent‘s counsel shall be compensated from the respondent’s estate unless the respondent is found indigent in accordance with Rule 3.1 of the Rules of Civil Procedure. For indigent respondents, the court shall maintain a list of pro bono counsel from the private bar to be used before appointing nonprofit legal services organizations to serve as counsel. (Added 1979, No. 76, § 15; amended 1991, No. 38, § 1; 2005, No. 198 (Adj. Sess.), § 10, eff. Sept. 1, 2006; 2007, No. 186 (Adj. Sess.), § 1.)