In re Guardianship of Henderson
In re Guardianship of Henderson
Opinion of the Court
MEMORANDUM OPINION
The ward, Jason Henderson, appeals the decision of the Hillsborough County Probate Court (Cloutier, J.), appointing a guardian over his person. We reverse and remand.
When Phyllis Henderson filed a petition for guardianship over her son, the probate court appointed an attorney to represent Jason’s interests in
Jason, now represented by other counsel, contends that he was deprived of the full assistance of legal counsel in his defense of the involuntary guardianship proceedings. Specifically, he maintains that his appointed counsel effectively assumed the role of guardian ad litem, rather than that of legal counsel.
The right to legal counsel for any person for whom a guardianship is sought “shall be absolute and unconditional.” RSA 464-A:6, I (1992). Even when an attorney is appointed to represent an allegedly incapacitated person, “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” N.H. R. PROF. Conduct 1.14(a). Accordingly, at a minimum, the lawyer must “develop a strategy, in collaboration with the client, for solving the legal problems of the client.” N.H. R. PROF. CONDUCT 1.1(c)(3).
In addition to the appointment of legal counsel, the guardianship statute permits the trial court, in its discretion, to appoint a guardian ad litem when it appears that the rights of the allegedly incapacitated person are not fully represented. See RSA 464-A:41,1 (Supp. 2002). The guardian ad litem must act “in the best interest” of the proposed ward. See SYSTEM-WIDE Guardian Ad Litem Application, Certification And Practice Rule 2.4.1(b)(3).
In creating distinct provisions for legal counsel and a guardian ad litem, the legislature acknowledged that the two roles address different overarching concerns in a guardianship proceeding. Even when representing a client with a disability, legal counsel must, as far as reasonably possible, carry out the client’s decisions. See N.H. R. Prof. CONDUCT 1.14(a). The guardian ad litem, on the other hand, should “reach an independent conclusion on what is in the best interest of [the proposed ward] but, in reaching such conclusion, may, in appropriate cases, consider the preferences of [the proposed ward].” SYSTEM-WIDE GUARDIAN Ad Litem Application, Certification And Practice Rule 2.4.2(b).
Here, counsel blurred the boundaries of the two roles. In her seven-page report to the probate court, counsel — acting as legal counsel — presents
In a guardianship proceeding, the proposed ward is entitled to counsel who will undertake representation of his or her legal interests. Cf. In re DeLucca, 121 N.H. 71, 72 (1981) (underscoring requirement that guardianship petition set forth facts with sufficient particularity to allow proposed ward to prepare a defense). Because Jason did not have the full assistance of legal counsel to attack the guardianship petition, we reverse and remand.
Reversed and remanded.
Reference
- Full Case Name
- In Re Guardianship of Jason Henderson
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- 3 cases
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- Published