What Role Should a Court-Appointed Attorney Plan When Representing an Incapacitated Client?

by Ralph E. Hughes

When an incapacitated adult, or an allegedly incapacitated adult, must appear in probate court, probate courts often appoint an attorney to represent the incapacitated or allegedly incapacitated adult. Although the appointment of an attorney for an incapacitated adult or an allegedly incapacitated adult has been required by law in certain cases for years, the precise role that the appointed attorney is to play in the case is not well-defined.

Is the attorney to be an advocate for the client’s interests as determined by the client or is the attorney to tell the judge what the attorney thinks is in the client’s interests regardless of the client? Historically, many probate judges have expected and even required an attorney appointed to represent an incapacitated or allegedly incapacitated adult to function as a reporter to the court. That is, the judges expect the appointed attorney to file a report indicating the appointed attorney’s impressions, opinions, and conclusions regarding the propriety of the proceeding even if the attorney’s opinions and conclusions differ from those of his or her client. For example, an attorney appointed to represent an allegedly incapacitated adult might report to the court that a conservatorship for his or her client is appropriate when the client actually wants to resist the imposition of a conservatorship.

In this article, Anne and I argue that the judges who encourage or require appointed attorneys to provide their own conclusions to the court have it wrong, and that practice in probate courts around the state should change. According to the research done by Anne and Ralph, California law as it exists today already requires an appointed attorney to be a zealous and confidential advocate for the client’s interests as determined by the client and prohibits an appointed attorney from acting as a reporter to the court. Their conclusion is that the practice of encouraging and requiring reports from appointed attorneys may be traditional, but it is wrong. Instead, California probate judges should expect an attorney appointed to represent an incapacitated adult or an allegedly adult to advocate the client’s own interests, not the client’s interests as determined by the attorney.

Several probate judges around the state have responded to the article. Not all judges agree, but at least one probate judge has changed the local rules governing appointed attorneys practicing in her courtroom as a result of the article.

It is likely that legislation will be proposed to clarify that California law requires the appointed attorney to advocate the interests of his or her client, as determined by the client.

Ralph E. Hughes – July 20, 2019