Section 5-106
(a)
After filing of a petition for appointment of a guardian, conservator or other protective order, if the ward, incapacitated person or person to be protected or someone on his behalf requests appointment of counsel; or if the court determines at any time in the proceeding that the interests of the ward, incapacitated person or person to be protected are or may be inadequately represented, the court shall appoint an attorney to represent the person, giving consideration to the choice of the person if 14 or more years of age. If the ward, incapacitated person or person to be protected has adequate resources, his counsel shall be compensated from the estate, unless the court shall order that such compensation be paid by the petitioner. Counsel for any indigent ward, incapacitated person or person to be protected shall be compensated by the commonwealth or the petitioner as the court may order. This section shall not be interpreted to abridge or limit the right of any ward, incapacitated person or person to be protected to retain counsel of his own choice and to prosecute or defend a petition under this article.
(b)
The court may appoint as guardian ad litem, an individual or any public or charitable agency to investigate the condition of the ward, incapacitated person or person to be protected and make appropriate recommendations to the court.
(c)
The incapacitated person or person to be protected is entitled to be present at any hearing in person. A ward, if 14 or more years of age, is entitled to be present at any hearing in person unless the court, upon written findings, determines that the best interest of the ward will not be served thereby. The person is entitled to be represented by counsel, to present evidence, to cross-examine witnesses, including any physician or other qualified person and any guardian ad litem. The issue may be determined at a closed hearing if the person or counsel for the person so requests.
(d)
Any person may apply for permission to provide information in the proceeding and the court may grant the request, with or without hearing, upon determining that the best interest of the person to be protected will be served thereby. The court may attach appropriate conditions to the permission.
Comment
The section establishes a framework within which professionals, including the judge, attorney, and physician, if any, may be expected to exercise good judgment in regard to the person who is the subject of the proceeding. The National Conference accepts that it is desirable to rely on professionals rather than to attempt to draft detailed standards or conditions for appointment.
Since there has not been any prior determination of incapacity, the person, who is the subject of the proceeding, should be extended the same rights as any other person whose personal freedom may be restricted as a result of the proceedings. Subsections (a) and (c) expressly recognize those rights. The hearing will be an open hearing, unless the person or counsel for the person requests a closed hearing.
Subsection (b) permits, but does not require, the court to utilize agencies, which may have a particular expertise, to aid in evaluating the person's condition. Subsection (d) permits a person, who might not otherwise be an “interested person,” to request permission to provide information in the proceeding. The court may or may not grant the permission and may attach conditions to the permission when granted. The court is given broad latitude in using public-interest agencies and in permitting persons, who do not otherwise qualify as “interested persons,” in aiding the court to evaluate the case and in determining measures that will be in the best interest of the individual. There are not any rights for these groups to participate in the proceedings–their involvement initially and the extent of their involvement is within the discretionary control of the court.
Massachusetts comment
The wording relative to a “visitor” has been deleted as unnecessarily duplicative. A UPC provision allowing the Court to grant to an appointed attorney power to act as guardian ad litem was removed. An attorney's duty of zealous advocacy may conflict with a guardian ad litem's responsibility to report to the Court, see “Zealous Advocacy for the Defendant in Adult Guardianship Cases,” Clearinghouse Review, January 1996, p. 879.
Under the Code adult persons subject to guardianships and conservators have the right to be present at hearings.
Chapter 140 of the Acts of 2012 added “or the petitioner as the court may order” to the end of the third sentence of subsection (a).