Right to Legal Counsel Extends to Guardianship Review Hearings

By Attorney Elena Lidrbauch

When a guardianship application is initially filed, certain steps must be followed by all probate courts. The case is initially assigned to a court investigator who must meet with the prospective ward (the individual under guardianship) and inform the prospective ward of his or her rights. Included among these rights are the right to receive notice that a guardianship application has been filed, that the prospective ward has the right to be present at the hearing, and the right to be represented by counsel. If the prospective ward is indigent, the court must appoint an attorney to represent the prospective ward[1]. Once a guardianship has been established, the ward has the right to seek termination of the guardianship by requesting a review hearing after a period of 120 days has passed from the establishment of the guardianship, and annually thereafter[2].

In Ohio, guardianships are established and supervised by county probate courts. Ohio has 88 county probate courts and although they all must follow state probate laws as well as rules governing probate court practice adopted by the Ohio Supreme Court, the county probate courts may adopt local rules and practices that are unique to each county. This results in variation among county probate court practices and how a particular case is handled. This may also result in different treatment of wards in guardianship proceedings. For example, until recently some county probate courts have appointed counsel to represent an indigent ward in guardianship review hearings, while others have not.

Earlier this year the Ohio Supreme Court clarified and hopefully eliminated this inconsistent practice. In State ex rel. McQueen v. Cuyahoga Cty.,[3] the Court issued a decision stating that persons who are under guardianship and are indigent have a right to have an attorney appointed to represent them at a guardianship review hearing.

The case was initiated in Cuyahoga County and involved a guardianship that was initially established in May 2010. James McQueen, the ward, was found to be incompetent and in need of a guardian due to the effects of his mental illness. Prior to the guardianship, Mr. McQueen had been homeless, without medication needed to control his diabetes and schizophrenia, and not compliant with his mental health case manager. The probate court determined that Mr. McQueen was indigent and appointed an attorney to represent him at the application hearing. After the hearing and a determination of incompetency, the court appointed Adult Guardianship Services to serve as guardian for James McQueen. Thereafter the guardian placed Mr. McQueen in a secured nursing facility.

Approximately 120 days after the establishment of the guardianship, Mr. McQueen submitted a written request to the probate court for a review of the guardianship in an effort to have the guardianship terminated. Mr. McQueen also requested that counsel be appointed for him. Although the court scheduled a review hearing, it did not appoint counsel to represent Mr. McQueen. Mr. McQueen filed a complaint in the court of appeals for a writ of mandamus to compel the probate court to appoint counsel for him for the guardianship review hearing. The court of appeals agreed with the probate court and denied the writ. Mr. McQueen then filed an appeal with the Ohio Supreme Court. A number of groups, including the Legal Aid Society, Disability Rights Ohio and NAMI submitted briefs to the Court in support of Mr. McQueen’s request to have an attorney appointed to represent him.  

The Supreme Court agreed with Mr. McQueen. In reaching its decision, the Court reviewed Ohio law and determined that the right of indigent wards to appointed counsel at the initial hearing extends to guardianship review hearings. In addition, the Court noted that its interpretation is consistent with the practice of probate courts from Franklin, Summit, Medina, and Logan Counties and that other states with similar laws recognize the right to appointed counsel in guardianship review hearings.

The Supreme Court’s decision should ensure that in the future, all wards requesting review of their guardianship will have the opportunity to be represented by counsel, regardless of their ability to pay, or county of residence.

[1] R.C. §§2111.02; 2111.04

[2] R.C. §2111.49(C)

[3] State ex rel. McQueen v. Cuyahoga Cty. Court of Common Pleas, Probate Div., 135 Ohio St.3d 291, 2013-Ohio-65

Posted in Articles, Articles: Adults with Disabilities.