North Dakota

Guardianship Laws

Adult Guardianship Statute: 
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Not stated
Right to Counsel Statututory Citation: 
Right to Counsel Definition in Statute: 

"Upon the filing of a petition, the court shall set a date for hearing on the issue of incapacity, appoint an attorney to act as guardian ad litem, appoint a physician or clinical psychologist to examine the proposed ward, and appoint a visitor to interview the proposed guardian and the proposed ward." N.D. Cent. Code §§ 30.1-28-03(3).

Advocacy Role of Counsel Defined in Statute: 
Advocacy Role of Counsel Definition in Statute: 

The duties of the attorney include: (a) Personally interviewing the proposed ward; (b) Explaining the guardianship proceeding to the proposed ward in the language, mode of communication, and terms that the proposed ward is most likely to understand, including the nature and possible consequences of the proceeding, the right to which the proposed ward is entitled, and the legal options that are available; and (c) representing the proposed ward as guardian ad litem. If the appointed attorney or other attorney is retained by the proposed ward to act as an advocate, the attorney shall promptly notify the court and the court may determine whether the attorney should be discharged from the duties of guardian ad litem. See N.D. Cent. Code §30.1-28-03(4)(c).

Professional Rules &/or Ethics Opinions: 

NDRPC Rule 14: "(a) When a client's capacity to make adequately considered decisions in connection with a representation is limited, 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. (b) When the lawyer reasonably believes that the client has limited capacity, is at risk of substantial physical, financial or other harm unless action is taken and the client cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian."

Other Case Law: 

"North Dakota law demands a least-restrictive approach in guardianship matters so the protected person will have personal liberties and prerogatives restricted only to the extent necessary under the circumstances. In re Guardianship of Van Sickle, 694 N.W. 2d 212 (2005). "A guardian for a mentally incompetent person has the authority to authorize appeal from judgment which adversely affects interests of his ward." Goetz v. Gunsch, 80 N.W. 2d 548 (1956).

Discuss Guardianship or Supported Decision-Making?: