The commencement of involuntary conservatorship proceedings pertaining to an elder may initiate the most stressful and disruptive series of events that such a proposed conservatee may face in his or her life. Whether we as practitioners act as advocates for a good faith proposition that conservatorship is very necessary for that elder’s own protection, or whether we are required to zealously defend against such proceedings when the clear mandate from our proposed conservatee client is a desire to live as freely and as least restricted as possible, the rights and liberties of the proposed conservatee can never be ignored.
One of these fundamental rights, to be carefully considered, is the right to be represented by counsel of one’s own choosing.
The right to choice of one’s own counsel in a contested conservatorship proceeding is clearly set forth in black-letter law, both statutory and decisional. Probate Code § 1828(a)(6), specifically provides that the Court shall inform the proposed conservatee, among other things, of the following: “The proposed conservatee has the right to oppose the proceeding, to have the matter of the establishment of the conservatorship tried by jury, to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel.” Implicit in the statutory scheme is the fact of a proposed conservatee’s absolute right to choice of counsel. Indeed, the statutory scheme always defers to the proposed conservatee’s choice in counsel. Probate Code § 1470(a) specifically provides that “[t]he court may appoint private legal counsel for a ward, a proposed ward, a conservatee, or a proposed conservatee in any proceeding under this division if the court determines the person is not otherwise represented by legal counsel and that the appointment would be helpful to the resolution of the matter or is necessary to protect the person’s interests.”
By statute, court appointment of counsel should only be made or maintained, contingent upon Court determination that the proposed conservatee “is not otherwise represented by legal counsel.” Id. The statutory scheme speaks to the notion of choice in counsel by defaulting to appointment only where the proposed conservatee has not expressed his or her own choice. Probate Code § 1471 provides for appointment of legal counsel only where a “person alleged to lack legal capacity is unable to retain legal counsel and requests the appointment of counsel to assist in the particular matter,” each of which factors (the inability to retain counsel and a request for appointment) may be rare. Practice guide sources, such as Cal. Civ. Practice Probate and Trust Proceedings, Appointment of Counsel, § 29:11, suggest likewise, observing that only where the conservatee “has not retained legal counsel and does not plan to do so,” would a court appoint counsel.
The need for Court appointed counsel in certain cases is not disputed. A Court’s immediate appointment of counsel may be essential to the protection of a proposed conservatee’s rights against the harm alleged in the Petition for Conservatorship, and so too even against the relief sought by a Conservatorship Petition which may be too strident in its potential impact upon the liberties of the proposed conservatee. Initial and immediate appointment of a member of the Court’s list of panel counsel in a conservatorship proceeding is no doubt driven by a sincere desire to protect the proposed conservatee. However, any initial and perhaps “automatic” appointment of counsel in a conservatorship proceeding, in which nothing has yet been adjudicated, cannot be taken to mean that the proposed conservatee is thus precluded from his or her own choice in counsel. Indeed, a probate Court’s routine “appointment of counsel process” cannot be seen as a means to facilitate imposition of a conservatorship by suggesting that the proposed conservatee cannot make up their own mind as to this critical, personal choice. Rather, such an appointment process is cautionary and exists first and foremost to protect those targets of conservatorship who may lack the means, economic or otherwise, to find their own counsel and protect themselves, even against the Conservatorship itself. The appointment process is thus a concept that is essentially in place as a default mechanism, to ensure that proposed conservatees do have counsel, and to protect against the risk that anyone, including perhaps even overzealous petitioners, may run rough-shod over the proposed conservatee.
Where any proposed conservatee at any time states his or her own preference for counsel, it is important for the Court and all counsel to recognize and carefully consider that fundamental right of choice. Conservatorships are one of the few if not only proceedings in probate court where the right to a jury trial by the proposed conservatee is maintained, given the significant deprivation of liberty that a conservatee may suffer, if a conservatorship is imposed. (Probate Code § 1827; see also – Welfare & Institutions Code § 5350(d)(1)) It is well established from a variety of cases that a refusal to recognize or allow the appearance or representation by counsel of choice is a denial of due process and therefore an act in excess of jurisdiction. (See, Golden State Glass Corp. v. Superior Court (1939) 13 C.2d 384, 396, (mandamus issued to compel recognition of party’s attorney). “The constitutional right to the effective assistance of counsel embraces the right to retain counsel of one’s own choice.” Yorn v. Superior Court (1977) 90 Cal.App.3d 669, 674. A client can be “constitutionally… forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.” Id., quoting People v. Crovedi (1966) 65 Cal.2d 199, 208.
Questions may arise in particular cases as to whether the capacity of the proposed conservatee and his or her decision making capabilities to even hire or maintain counsel, are so hindered, impaired or compromised under given circumstances, that they must be given a separate evaluative hearing of their own. This concern may be the subject of future articles on this important topic. Here, it is noted that California law first and foremost amply and broadly supports a fundamental right of choice to one’s own counsel. This fundamental right of choice is important for all counsel to a conservatorship proceeding to appreciate, consider and weigh into every conservatorship case.
*The views and opinions expressed in this article are those of the author only.