MUPC Article V procedural outline - F. Appointment of counsel: 5106(A)

The contents of this outline are intended to provide general guidance to Court staff in the handling of guardianship of incapacitated persons and conservatorship cases. This outline does not cover guardianship of minors matters.

1. Timing of appointment
   1. At filing
      1. Mandatory Appointments shall be made at time of filing in the following cases:
         1. Substituted Judgment cases
            1. Rogers requests;
            2. Extraordinary medical authority.
         2. Request for Counsel Form filed
            Presumably at this point it would only be if Petitioner requested it on behalf of the proposed Respondent.
   2. After filing
      1. By Judge in courtroom ex-parte
         If the case needs to go into the courtroom for any reason such as a Motion for Emergency Guardian or Conservator or a Motion to File a Medical Certificate Late, the Court shall determine if counsel shall be appointed.
      2. By Judge Administratively
         If there is no mandatory appointment and the case is not being heard by the Judge immediately after filing, the file shall be given to the Judge to whom the case is assigned as soon as is practicable after the case initiation/issuance of a citation. The Judge, based on a review of the file, shall determine in accordance with the established Policy Guideline whether or not to appoint counsel at the time of the file review:
         1. No order for Appointment of Counsel will issue unless the Court exercises its discretion to appoint counsel.

         2. Motion for Temporary Guardian or Conservator

            If a Motion for Temporary Guardian or Conservator is filed and the Judge previously reviewed the file but did not appoint counsel, the file shall be returned to the Judge to whom the case is assigned for a redetermination of the issue of appointment of counsel based on the contents of the Motion.

            If the file has not been given to the Judge or the Motion is not filed with sufficient time to be reviewed prior to the hearing on the Motion for Temporary Guardian or Conservator, the Judge should first determine at the hearing whether counsel shall be appointed prior to proceeding with the Motion. The Judge may determine that counsel needs to be present for the hearing on the Motion and the hearing may be deferred to another date.

      3. Anytime thereafter
         An appointment of counsel shall be made at anytime thereafter if it is requested by the Respondent or by someone on his or her behalf or if the Court at any point determines that the interest of the Respondent are or may be inadequately represented.
         1. In open Court
            At the initial hearing on the matter, the Court shall advise the Respondent, if present, of his or her right to counsel. SJC R. 3:10.
         2. At the counter or by mail
            1. When a Request for Counsel form is filed; or
            2. When a request is received, regardless of the format (i.e. in a letter), the request shall be entitled Request for Counsel, filed and processed in the same manner as a Request for Counsel allowed by the Judge administratively (supra).
      4. Notice to Petitioner or Petitioner’s counsel
         The Court shall provide a copy of any Order of Appointment of Counsel to the Petitioner or his or her counsel.
2. Making the appointment
   1. A CPCS approved list of available counsel shall be maintained in each courthouse.
   2. If Rogers counsel was previously appointed, this counsel may be appointed to represent the Respondent.
   3. When a regular appointment is to be made, CPCS counsel shall be appointed in sequential order.
   4. When an emergency appointment is to be made, CPCS counsel shall be appointed in sequential order to the extent possible given the exigency of the matter.
   5. If any CPCS counsel refuses to take a case, this shall be immediately reported to CPCS.
   6. The Order of Appointment shall include:
      1. Information as to who shall pay for counsel (See determination of indigency below)
      2. Where a Guardianship is sought, counsel’s access to medical records for the alleged incapacitated person and where a Conservatorship is sought, counsel’s access to financial records of the person to be protected.
      3. The date of any and all hearings which are pending at the time the appointment is made: 1. If there is no pending hearing scheduled at the time of appointment, a hearing shall then be scheduled;
      4. A statement to provide counsel with a set period of time within which he/she may file an objection to the underlying petition regardless of any citation which may have a return date which is outstanding or has passed.
3. Determination of indigency: 5106(a)

   1. At any point when the court is appointing counsel for the Respondent, the court must determine whether or not the Respondent is indigent in accordance with MGL c.261, §27B.

      The Court shall determine if the party is indigent, indigent but able to contribute, or not indigent in accordance with SJC R. 3:10.

   2. Presumption of Indigency Under SJC R.3:10§ 1(f) (i), a party is indigent if, inter alia, they receive Medicaid or Supplemental Security Income. Rule 3:10 § 1(f)(iii) defines an indigent person as one who, among other things, is “residing in a tuberculosis treatment center or public or private mental health, mental retardation or long term care facility, including Bridgewater State Hospital and Treatment Center.”

      Any Respondent residing in a mental health facility, mental retardation facility, nursing home or other long term care facility when the petition is filed is considered indigent. Moreover, any person who is a Respondent in a proceeding seeking admission to such a facility is presumed indigent.

4. Payment of counsel fees
   Whenever counsel is appointed, the appointment shall indicate that counsel shall be paid for by:
   1. CPCS
      1. If the Respondent is indigent.
      2. If the Court can not determine whether the Respondent is indigent.
      3. If, in accordance with SJC Rule 3:10, it appears that the Respondent is indigent but able to contribute a certain reasonable amount, this amount shall be paid to “the probation officer or other appropriate court employee” towards the cost of counsel.
      4. If, prior to the commencement of a hearing, the Court determines that the Respondent is not indigent, assigned counsel may be dismissed, and, if so, the person shall be advised to retain private counsel without delay; provided, however, that if the interests of justice so require, the Court shall authorize the continued services of appointed counsel at public expense. The interests of justice may require such appointment if, for example, the party is incompetent to obtain counsel, incapable of obtaining access to funds, or incapable of locating or contracting with a lawyer. If, subsequent to the commencement of a hearing in such proceedings, the court determines that the person is not indigent, assigned counsel shall continue to represent the party and the party may be ordered to reimburse the Commonwealth therefor. SJC R.3:10, §5.
   2. The Respondent’s estate, if the Court on the basis of the information in the Petition, or other information, determines the Respondent is not indigent;
   3. The Petitioner, if the Court determines based upon the information contained in the petition or based upon other information that indicates that the person is not indigent and that payment by the Petitioner is warranted, whether or not the person is indigent.
5. Withdrawal of counsel
   Counsel shall seek to withdraw their representation with the Court in accordance with Mass. R. Civ. P. 11(c).
6. Upon the allowance of a motion to withdraw where no Notice of Appearance is filed by successor counsel, new CPCS counsel shall be appointed.
7. Scope of appointment and termination of appointment.
   1. All counsel appointed to represent the Respondent shall represent the Respondent in every aspect of the matter and the representation shall be not be considered to be limited unless the Judge provides for a limitation in the Order of Appointment. This includes counsel appointed as a result of a Rogers request who shall represent the Respondent in every aspect of the underlying case.
   2. With the exception of Rogers counsel, a counsel’s appointment generally terminates upon the entry of the Decree of Appointment or the Decree of Dismissal. However, in an appropriate case, in the Court’s discretion, the Court may indicate on the Decree that counsel shall continue to represent the incapacitated or protected person. The court may indicate a specific time or event in the future when counsel’s representation will terminate. Rogers counsel shall continue to represent the Respondent for purposes of the annual review. This representation is limited to the aspects of the review only unless otherwise ordered by the Court.
   3. If Rogers counsel is appointed in a matter and the Order of Appointment does not otherwise limit counsel’s representation, if the request for Rogers authority is removed or the plan has expired and is not being extended, Rogers counsel shall continue to represent the Respondent in the underlying Petition unless otherwise ordered by the Court.