COURT - APPOINTED ATTORNEYS NOT YOUR CHOICE
Under Arizona law, when someone petitions the court asking to be appointed guardian of an allegedly incapacitated adult, the person over whom the guardianship is sought must be represented by an attorney of their own. Unless that person already has an attorney, the court must appoint one (ARS 14-5303(C)). The Rules of the Probate Court describe how the request is made for an attorney and list a few individuals who are precluded from representing the alleged incapacitated person.
For example, the Petitioner does not get to choose the attorney for the alleged incapacitated person unless the attorney has a pre-existing attorney-client relationship with the alleged incapacitated person. And it must be someone other than an attorney who currently or in the past represented the Petitioner (Rule 41).
The Rules of Probate Court also require the court-appointed attorney to complete specific training offered by the Arizona Supreme Court. And the alleged incapacitated person’s attorney “must advocate for the subject person’s wishes to the extent the attorney is able to ascertain those wishes. The attorney must, as far as possible, maintain a normal attorney-client relationship with the subject person. In addition, the attorney must act to protect the subject person’s substantive and procedural due process rights.” (Rule 42). These rules delineating the attorney’s responsibility to the alleged incapacitated person are consistent with the ethical rules attorneys are required to follow.
People often misunderstand the responsibilities of the court-appointed attorney. Many seem to think the court-appointed attorney is interested in the best interests of the alleged incapacitated person. This is not necessarily the case. Friends, relatives, acquaintances, and especially medical providers are sometimes very quick to assert someone is unsafe and needs to be in a restricted and supervised environment. And it makes sense to think that someone who is subject to falling and cannot necessarily make their meals and provide for all their own needs should have restrictions and supervision imposed upon them. Maybe they should be moved to another environment, like an assisted living facility or a nursing home where “adequate” and “appropriate” care can be provided.
But not everyone wants that for themselves. In reality, few do. “Capacity” to make decisions can be a very fluid thing. And the decisions we make may not always be considered good decisions by someone else. The fact is, we are allowed to make poor decisions. We can neglect our health. We can give away our money. My adult children may not like the fact I have decided to marry my 21-year-old caregiver, but I may have the right to make that decision.
So what do you do about someone who knows what is going on, can express their wishes to some degree, and is perfectly content to stay in their environment and even die in their environment? Or maybe that person will concede to having someone make decisions for them, but they want to choose who it is, and it may not be the Petitioner.
As an attorney for the alleged incapacitated person, if he or she can tell me what they want, I will do my best to treat them as normally as I would any other client and advocate for their position. I will also treat them with respect and dignity, even if others do not. The rules allow very limited situations in which I can go against my clients stated wishes to protect them from a risk of substantial physical or financial harm. The rules, however, do not require me to take protective action.
Every human being deserves to have a voice. Every human being is entitled to what is referred to in the law as substantive and procedural due process – protection of their fundamental rights and particularly the right to notice and an opportunity to be heard in court. Even those alleged to have diminished capacity deserve to have a voice.
