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Does a ward have the right to hire a private attorney?

| Oct 5, 2016 | Guardianships & Conservatorships |

The answer is a qualified yes. This comes after a change in Colorado law that has not received wide news coverage.

Too frequently, the right to counsel has been denied to adults the court has deemed incapacitated (legally considered wards or protected persons). The reasoning being that these people no longer have the ability to contract with an attorney.

This can make it near impossible to terminate a guardianship or conservatorship. Similarly, it is difficult to challenge the actions of the appointed fiduciary (i.e. charging exorbitant fees to open the mail) without a private attorney.

A troubling court decision

While some Colorado district courts respected the right of a ward to hire a private attorney, others had not. In one decision, a district court concluded that, “The Protected Person retained the right to hire counsel of her own choice to represent her until [the date the conservator was appointed]. After then, her conservator acquired the right to decide whether to retain or discharge the attorney she had chosen.”

Why could this become a problem? Here is a hypothetical. A 45-year-old woman suffered a brain injury in a crash. She was unable to handle her finances. Her family lived on the other side of the country and asked a local court to appoint a conservator. The woman recovers and wants to terminate the conservatorship. She might need her own private attorney to represent her interests.

*As an aside: a durable power of attorney also called a financial power of attorney could have avoided the need for the conservatorship hearing in the first place. It would have allowed the woman to name a trusted friend to manager her finances instead.

And a change in the law

The attorneys at Chayet & Danzo along with others worked on addressing this issue. The outcome was a bipartisan bill – Senate Bill 131. It became law with Governor Hickenlopper’s signature on June 10, 2016.

An adult now has the right to choose a private attorney post-adjudication. The expense is paid by the ward’s estate. On a case-by-case basis, the court may still need to review whether an individual has sufficient capacity to retain a lawyer. However, the presumption has shifted.

In the past, some courts presumed a conservator/guardian was best placed to decide if a ward needed an attorney. This could lead to a conflict of interest especially in cases related to abuse or potential fraud.

Now, the presumption is that a ward has the right to hire a private attorney in the following hearings:

  • Request for a change/termination of a guardianship/conservatorship
  • Review of fiduciary conduct
  • Appellate review
  • Other petitions for help from the court.

The court has the right to appoint a lawyer when it deems necessary.

As these new provisions go into effect there will be situations that fall into gray areas. Appellate review may be necessary if a court refuses a request for a private lawyer.

At Chayet & Danzo, we have long been devoted to protecting and extending the right to counsel for the most vulnerable in our communities. If you have questions or need to challenge an issue related to a conservatorship or guardianship, please contact us to discuss your concerns.

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