GUIDING FAMILIES THROUGH THE SEASONS OF LIFE

Respondent in Minnesota Guardianship Has Right to Private Attorney

A respondent in a guardianship or conservatorship action in Minnesota has the right to have a private attorney, rather than court appointed counsel.  The attorney can be hired by the respondent (if the respondent isn’t under emergency guardianship, then he/she still retains the right to contract) or provided by family members.

Minn. Stat. 524.5-304 provides the details about the respondent’s right to counsel in guardianship actions in Minnesota.  It provides, in pertinent part:

(b) A proposed ward has the right to be represented by counsel at any proceeding under this article. The court shall appoint counsel to represent the proposed ward for the initial proceeding held pursuant to section 524.5-307 if neither the proposed ward nor others provide counsel unless in a meeting with a visitor the proposed ward makes an informed decision in writing to specifically waive the right to counsel.

The statute also makes it clear that if the respondent retains private counsel, the court may then remove court-appointed counsel.  It provides:

 . . . the court may remove a court-appointed attorney at any time if the court finds that the proposed ward has made a knowing and intelligent waiver of the right to counsel or has obtained private counsel.

I think there is a mistaken belief that court-appointed attorneys are not “as good” as privately hired attorneys.  While this may be true in isolated cases, it’s my belief that in most cases court appointed attorneys are highly qualified and vigorously represent their clients.  Still, if the respondent or family want private counsel, the respondent is entitled to it under the statute.

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