Role of Counsel in an Incapacity Proceeding
Many eldercare professionals have observed or have in someway been involved in an incapacity proceeding. The roles of the parties are not always clear. As a lawyer involved in over 350 incapacity proceedings the one concern/ambiguity I have always had is the role or counsel appointed for the alleged
When the Lawyer Must Notify the JudgeIn Pennsylvania the lawyer who represents the petitioning party in an incapacity proceeding is required to notify the judge in the matter if he or she believes counsel should be appointed by the Court for the alleged incapacitated person. The lawyer representing the petitioning party, while ostensibly is seeking the appointment of a guardian to protect the alleged incapacitated person, does not represent the alleged incapacitated person. A guardianship is an adversarial proceeding.
The Role of the CounselBut what is the role of counsel for the alleged incapacitated person? Is it a staunch advocate, to use every legal tool to fight the appointment of a guardian, even if counsel believes that is in the best interest of the individual to have a guardian to protect them? Or is it someone to act to be another set of eyes and ears for the court to help assess what is in the best interest of the alleged incapacitated person? Or is it both or neither? Appointed counsel is put in a very difficult position legally and ethically.