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Right to an Attorney in Probate Code Proceedings

July 6, 2015

Most people know that a defendant in a criminal case has a Constitutional right to an attorney. Our clients are often surprised to learn that certain individuals have the right to an attorney in various “protective proceedings” under the Probate Code.

Subject to the discretion of the court, minor children in guardianship proceedings and conservatees in conservatorship proceeding are entitled to an attorney to represent their interests. On some occasions, the minor or conservatee already has an attorney, or expresses a preference for an attorney with whom they are acquainted, and in these instances, the court usually honors their request. If the minor or conservatee has no attorney (or is not of sufficient age or soundness of mind to choose one), the court will typically appoint an attorney from a list of court-approved private attorneys. When the conservatorship or guardianship estate has sufficient financial resources, court-appointed counsel are paid out of estate funds, which often increases the legal fees incurred. The court is most likely to appoint counsel in contested conservatorship and guardianship proceedings.

Generally, the court will appoint an attorney if the court believes it would be helpful to the resolution of the case, or if it is necessary to protect the person’s interests. In conservatorships only, the court must appoint an attorney for the conservatee in certain dementia cases or when the conservatee requests appointment of an attorney.

The law provides a right to an attorney in guardianships and conservatorships because these proceedings are unique: their purpose is to protect a vulnerable class of people by appointing someone else to make personal and financial decisions for them. It should be noted that local practices vary considerably among Contra Costa, Alameda, Solano, San Francisco and other Northern California counties.

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