CPR and Partners File Amici Brief Defending the Right of People Subject to Guardianship to Retain Zealous Counsel

The Center for Public Representation, along with the National Disability Rights Network and other disability and civil rights organizations, recently filed an amici curiae (“friend of the court”) brief in a guardianship case before the Western District of the Missouri Court of Appeals.

Critical issues on appeal include: (1) whether people subject to guardianship have the right to retain an attorney of their choice to challenge the terms of their guardianship; and (2) whether it is legally and ethically sufficient for counsel representing people subject to guardianship to act based on their “best interest,” rather than their expressed wishes.

Proposed amici have an interest in ensuring that every person subject to or facing guardianship enjoys full and meaningful due process rights, given the significant liberty and autonomy interests at stake in these proceedings . . .

Brief of Amici Curiae, p. 1

In this case, the trial court disqualified a Missouri P&A attorney who was retained by the person subject to guardianship to represent her in seeking modification of the terms of the guardianship, improperly concluding that she could not hire private counsel because of the prior adjudication of incapacity.  The trial court also erred in ordering the person’s court-appointed attorney to take actions in his client’s representation based on a good faith determination of her best interest. On appeal, the Missouri P&A addressed arguments based on Missouri law.

Amici’s brief focused on the appellant’s right to hire a zealous advocate to challenge the terms of the guardianship on federal due process grounds.

While guardianship remains one of the most sweeping civil judgments that can be levied upon a person, it does not and cannot result in stripping people of their Constitutional due process rights. . .

Brief of Amici Curiae, p. 5

Amici’s brief also educated the court about best practices identified through national trends in the field.

National trends have emerged over the last eight years to amplify the fundamental nature of the right of people subject to guardianship to hire and direct their own counsel to challenge the terms of their guardianship.

Brief of Amici Curiae, p. 12-13

10 organizations joined the amici brief.

In addition to CPR and NDRN, these organizations included the American Civil Liberties Union, the American Civil Liberties Union of Missouri, Autistic Self-Advocacy Network, Bazelon Center for Mental Health Law, CommunicationFIRST, Disability Rights Education & Defense Fund, National Coalition for a Civil Right to Counsel, and National Association of Councils on Developmental Disabilities.

Read the amici brief here.