Who Is Responsible For Retaining Counsel When Applying For Guardianship Of An Incapicated Person
Full Question:
I have applied for guardianship of my mother who has moderate dementia. She has been classified as legally incompetent and legally recognized as so. When I filed the guardianship papers, her brothers and sisters retained an attorney on her behalf, but they are paying his fees with her money from her account. Can they do this or are they not responsible for the fees since they retained him and mom is unable to consent because of her mental incapacity?
12/22/2007 |
Category: Courts |
State: Oklahoma |
#14258
Answer:
The following is an OK statute:
§ 30-3-107. Appointment of counsel — Explanation and inquiry by
court — Replacement of appointed counsel — Determination of
independence of retained counsel — Record
A. If at or prior to a hearing on a petition alleging a person to be an
incapacitated or partially incapacitated person, or if at any point in
the course of a proceeding pursuant to said petition, the subject of the
proceeding is not represented by counsel, the court may appoint an
attorney as provided in this section, and the court may at any time
subsequent to the filing of said petition appoint a guardian ad litem to
assist the court in making a determination as to whether or not an
attorney should be appointed for the subject of the proceeding. Where
available, an attorney appointed by the court may be a public defender.
B. If the subject of the proceeding is present at the hearing on
the petition and is not represented by counsel at said hearing:
1. The court shall explain on the record:
a. the purpose and potential consequences of the proceeding; and
b. the right to be represented by counsel upon request and that if the
subject of the proceeding wishes to be represented by counsel, the court
will appoint an attorney to represent the subject of the proceeding at
the hearing on the petition.
2. Following such explanation the court shall inquire of the subject of
the proceeding whether he wishes to have an attorney appointed.
a. If the subject of the proceeding requests the appointment of an
attorney, the court shall appoint an attorney.
b. If the subject of the proceeding does not request the appointment of
an attorney and the court is in doubt as to whether the subject of the
proceeding is capable of making an informed decision regarding the
appointment of an attorney and the court determines that it is in the best
interest of the subject of the proceeding to be represented by counsel,
the court shall appoint an attorney for the subject of the proceeding, or
if the court determines that the appointment of counsel is not in the
best interest of the subject of the proceeding, the court shall not
appoint an attorney.
c. If the subject of the proceeding does not request the appointment of
an attorney and the court determines that the subject of the proceeding
is capable of making an informed decision regarding the appointment of an
attorney, the court shall not appoint an attorney.
3. The court may make the explanation and inquiry required by this
subsection, regarding the purpose and potential consequences of the
proceeding and the appointment of an attorney, prior to the hearing on the
petition. At the hearing on the petition the court shall include on the
record the facts related to said explanation and inquiry, the
determinations made by the court with respect thereto and the reasons for
such determinations.
C. If the subject of the proceeding is not present at the hearing on a
petition alleging him to be an incapacitated or partially incapacitated
person and is not represented by counsel and the court has not made the
explanation and inquiry as provided by paragraph 3 of subsection B of
this section, the court shall make sufficient inquiry to determine
affirmatively whether it would be in the best interest of the subject of
the proceeding to appoint counsel to represent the subject of the
proceeding at the hearing on the petition.
1. If the court determines that it is in the best interest of the
subject of the proceeding to be represented by counsel, the court shall
appoint an attorney.
2. If the court determines that the appointment of counsel is not in
the best interest of the subject of the proceeding, the court shall not
appoint an attorney.
D. Whenever the court determines that the appointment of counsel is not
in the best interests of the subject of the proceeding, or if the subject
of the proceeding does not request the appointment of an attorney and the
court determines that the subject of the proceeding is capable of making
an informed decision regarding the appointment of counsel, the court
shall explain on the record the reason for such determination.
E.
1. If an attorney is appointed, the court shall delay the hearing on
the petition only for the period of time necessary for the attorney to
prepare the case for the hearing but in no event less than five (5) days
after such appointment.
2. The attorney appointed by the court shall be replaced by another
attorney if:
a. the subject of the proceeding prefers the services of an attorney
other than the one initially appointed for him;
b. the preferred attorney agrees to accept the responsibility; and
c. the subject of the proceeding or the attorney whom he prefers
notifies the court of the preference and the attorney's acceptance of
employment.
3. An attorney appointed pursuant to this section shall contact the
subject of the proceeding promptly after receiving notification of his
appointment. An attorney appointed pursuant to the provisions of this
section shall be compensated pursuant to the provisions of Section
4-403[30-4-403] of this title.
F.
1. Except as provided by paragraph 2 of this subsection or as
otherwise ordered by the court, the responsibility of an attorney
appointed pursuant to the provisions of this section ceases upon the
appointment of a guardian or limited guardian of the subject of the
proceeding or when a determination not to appeal the decision is made. The
court may appoint an attorney to represent a ward at any subsequent
proceeding.
2. Whenever there is an appeal of a decision made subsequent to a
hearing on a petition requesting the appointment of a guardian or limited
guardian, the responsibility of an attorney appointed pursuant to this
subsection continues with respect to the appeal until the conclusion of
the appeal proceedings. Upon application of the attorney, the court may
allow the attorney to withdraw from the case and shall appoint another
attorney to represent the subject of the proceeding in any appeal
proceedings.
G. In all cases where independent counsel is retained by or on behalf
of the subject of the proceeding, the court shall make independent
inquiry to determine whether counsel is independent and whether any
conflict of interest exists which would preclude proper representation of
the subject of the proceeding or which would be detrimental to the best
interest of the subject of the proceeding. The court shall appoint other
counsel where retained counsel is found not to be independent.
H. Proceedings brought pursuant to the provisions of this section
shall be made a part of the record in the guardianship proceeding.