Right to counsel expressly stated only in context of initial guardianship proceedings, and it is at the court's discretion -- i.e., the court "may" appoint counsel. Court "shall" appoint guardian ad litem in guardianship proceedings if the court determines the allegedly incacitated person is not adequately represented by counsel. Courts have held that this "shall" is mandatory, but a failure to appoint a GAL is not reversible error if the allegedly capacitated person's interests are adequately protected by an attorney or an individual acting in the same capacity as a GAL.
Identical to model rules with one addition:“This Rule is not violated if the lawyer acts in good faith to comply with the rule.” Ind. Rules of Prof’l Conduct(d). “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.” Id at (a). “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. “The 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.
“From the plain language of section 29-3-2-3, we can only conclude that courts are required to appoint a guardian ad litem in guardianship proceedings. Furthermore, a trial court may, in its discretion, fail to appoint a guardian ad litem, but only if the minor’s or incapacitated person’s interests are adequately represented by an attorney or an individual acting in the same capacity as a guardian ad litem.” C.W. v. D.M., 2009 Ind. App. Unpub. LEXIS 2110 *10 (Ind. Ct. App. 2009). The court in C.W. based its decision on the holding in Gerweck v. Schoenradt, in which the trial court’s failure to appoint a guardian ad litem during adoption proceedings was determined not to be reversible error because the trial court had appointed a special advocate (with a statutorily defined role nearly identical to that of the guardian ad litem’s) to represent the interests of the child. 793 N.E.2d 1054, 1061 (Ind. Ct. App. 2003). The court stated that “each represents and protects the best interests of the child by researching, examining, advocating, facilitating, and monitoring a child’s situation.” Id.
The person alleged to be incompetent may present evidence and cross-examine witnesses at the hearing. Burns Ind. Code Ann. § 29-3-5-1(e). A jury is permitted if requested more than seventy-two hours before the hearing. Id.
- Ind. Code. Ann. §§12-10-7-1: http://codes.lp.findlaw.com/incode/12/10/7/12-10-7-1
- 29-3-1-1: http://codes.lp.findlaw.com/incode/29/1/1/29-1-1-3
- Ind. Code Ann. § 29-3-5-1(c): http://codes.lp.findlaw.com/incode/29/3/5/29-3-5-1
- Ind. Rules of Prof’l Conduct 1.14: http://www.in.gov/judiciary/rules/prof_conduct/#_Toc341255462
- C.W. v. D.M., 2009 Ind. App. Unpub. LEXIS 2110 *10 (Ind. Ct. App. 2009): http://law.justia.com/cases/indiana/court-of-appeals/2009/12310912pdm.html
- 793 N.E.2d 1054, 1061 (Ind. Ct. App. 2003): https://www.courtlistener.com/opinion/2024798/in-re-adoption-of-bcs/
- Ind. Code Ann. § 29-3-5-1(e): http://codes.lp.findlaw.com/incode/29/3/5/29-3-5-1