A. If at or prior to a hearing on a petition alleging a person to be an incapacitated or partially incapacitated person, or if at any point in the course of a proceeding pursuant to said petition, the subject of the proceeding is not represented by counsel, the court may appoint an attorney as provided in this section, and the court may at any time subsequent to the filing of said petition appoint a guardian ad litem to assist the court in making a determination as to whether or not an attorney should be appointed for the subject of the proceeding. Where available, an attorney appointed by the court may be a public defender.

B. If the subject of the proceeding is present at the hearing on the petition and is not represented by counsel at said hearing:

1. The court shall explain on the record:

a.the purpose and potential consequences of the proceeding; and

b.the right to be represented by counsel upon request and that if the subject of the proceeding wishes to be represented by counsel, the court will appoint an attorney to represent the subject of the proceeding at the hearing on the petition.

2. Following such explanation the court shall inquire of the subject of the proceeding whether he wishes to have an attorney appointed.

a.If the subject of the proceeding requests the appointment of an attorney, the court shall appoint an attorney.

b.If the subject of the proceeding does not request the appointment of an attorney and the court is in doubt as to whether the subject of the proceeding is capable of making an informed decision regarding the appointment of an attorney and the court determines that it is in the best interest of the subject of the proceeding to be represented by counsel, the court shall appoint an attorney for the subject of the proceeding, or if the court determines that the appointment of counsel is not in the best interest of the subject of the proceeding, the court shall not appoint an attorney.

c.If the subject of the proceeding does not request the appointment of an attorney and the court determines that the subject of the proceeding is capable of making an informed decision regarding the appointment of an attorney, the court shall not appoint an attorney.

3. The court may make the explanation and inquiry required by this subsection, regarding the purpose and potential consequences of the proceeding and the appointment of an attorney, prior to the hearing on the petition. At the hearing on the petition the court shall include on the record the facts related to said explanation and inquiry, the determinations made by the court with respect thereto and the reasons for such determinations.

C. If the subject of the proceeding is not present at the hearing on a petition alleging him to be an incapacitated or partially incapacitated person and is not represented by counsel and the court has not made the explanation and inquiry as provided by paragraph 3 of subsection B of this section, the court shall make sufficient inquiry to determine affirmatively whether it would be in the best interest of the subject of the proceeding to appoint counsel to represent the subject of the proceeding at the hearing on the petition.

1. If the court determines that it is in the best interest of the subject of the proceeding to be represented by counsel, the court shall appoint an attorney.

2. If the court determines that the appointment of counsel is not in the best interest of the subject of the proceeding, the court shall not appoint an attorney.

D. Whenever the court determines that the appointment of counsel is not in the best interests of the subject of the proceeding, or if the subject of the proceeding does not request the appointment of an attorney and the court determines that the subject of the proceeding is capable of making an informed decision regarding the appointment of counsel, the court shall explain on the record the reason for such determination.

E. 1. If an attorney is appointed, the court shall delay the hearing on the petition only for the period of time necessary for the attorney to prepare the case for the hearing but in no event less than five (5) days after such appointment.

2. The attorney appointed by the court shall be replaced by another attorney if:

a.the subject of the proceeding prefers the services of an attorney other than the one initially appointed for him;

b.the preferred attorney agrees to accept the responsibility; and

c.the subject of the proceeding or the attorney whom he prefers notifies the court of the preference and the attorney's acceptance of employment.

3. An attorney appointed pursuant to this section shall contact the subject of the proceeding promptly after receiving notification of his appointment. An attorney appointed pursuant to the provisions of this section shall be compensated pursuant to the provisions of Section 4-403 of this title.

F. 1. Except as provided by paragraph 2 of this subsection or as otherwise ordered by the court, the responsibility of an attorney appointed pursuant to the provisions of this section ceases upon the appointment of a guardian or limited guardian of the subject of the proceeding or when a determination not to appeal the decision is made. The court may appoint an attorney to represent a ward at any subsequent proceeding.

2. Whenever there is an appeal of a decision made subsequent to a hearing on a petition requesting the appointment of a guardian or limited guardian, the responsibility of an attorney appointed pursuant to this subsection continues with respect to the appeal until the conclusion of the appeal proceedings. Upon application of the attorney, the court may allow the attorney to withdraw from the case and shall appoint another attorney to represent the subject of the proceeding in any appeal proceedings.

G. In all cases where independent counsel is retained by or on behalf of the subject of the proceeding, the court shall make independent inquiry to determine whether counsel is independent and whether any conflict of interest exists which would preclude proper representation of the subject of the proceeding or which would be detrimental to the best interest of the subject of the proceeding. The court shall appoint other counsel where retained counsel is found not to be independent.

H. Proceedings brought pursuant to the provisions of this section shall be made a part of the record in the guardianship proceeding.

Added by Laws 1988, c. 329, § 44, eff. Dec. 1, 1988. Amended by Laws 1990, c. 323, § 30, operative July 1, 1990.