The Advocate's Role in Representing a Client Subject to Temporary Protective Orders

• Publication year: 2000
• Pages: 63
• Citation: Vol. 29 No. 6 Pg. 63

29 Colo.Law. 63 Colorado Lawyer 2000.

2000, June, Pg. 63. The Advocate's Role in Representing a Client Subject to Temporary Protective Orders

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63

Vol. 29, No. 6, Pg. 63

The Colorado Lawyer
June 2000
Vol. 29, No. 6 [Page 63]

Specialty Law Columns
Estate and Trust Forum
The Advocate's Role in Representing a Client Subject to Temporary Protective Orders
by Kathleen A. Negri
C 2000 Kathleen A. Negri

Probate and elder law practitioners often are called on to represent a client who is already the subject of temporary or emergency ex parte protective orders of guardianship or conservatorship, or both. The Colorado Probate Code ("Code") gives authority to a court to enter temporary orders if the court determines that an emergency exists. However, statutory guidelines do not exist for what constitutes an "emergency" sufficient to obtain temporary orders, and the hearing practice of courts in this area varies considerably

Throughout the emergency hearing process, the individual is often referred to as an "allegedly incapacitated person" or "allegedly protected person" because there has not yet been a full evidentiary hearing on the merits of the case. In most cases, the person's response to the petitions will not be heard until the court enters permanent orders

Some believe that the imposition of temporary protective orders and the label "incapacitated" rob individuals of their right to engage an attorney or take appropriate and independent steps to present a defense to incapacity at the permanent orders hearing. When the matter of permanent protective orders is contested, these beliefs can result in a denial of due process unless the attorney advocates aggressively on behalf of the client. This article discusses some of the ways lawyers, as advocates, can represent clients who already are subject to temporary protective orders and the unique issues this type of representation presents, particularly when clients are mentally disabled

This article also refers to the 1997 Uniform Guardianship and Protective Proceedings Act ("UGPPA")drafted by the National Conference of Commissioners on Uniform State Laws.1 The UGPPA represents the first major revision of Code provisions for guardianship and conservatorship. It also represents a major shift in how protective proceedings are viewed by providing that (1) limited authority should be granted to the fiduciary whenever possible; (2) clients' participation during and after the entry of protective orders should be encouraged to the fullest extent feasible; and (3) guardianship and conservatorship are last resorts. This article uses the terminology of the UGPPA, which refers to allegedly incapacitated persons as "respondents" and, after a determination of incapacity or the need for protective orders, refers to these persons as "wards."

The Right to Retain Counsel

Colorado law recognizes that, because a guardianship proceeding involves the potential deprivation of an individual's fundamental rights and liberties, it implicates constitutional issues.2 This necessarily implicates constitutional protections, including a respondent's right to be present at hearings, to be presentby counsel, to present evidence, and to cross-examine witnesses.3

Colorado law also clearly establishes the right of respondents to choose their own counsel in a protective proceeding. The Colorado Court of Appeals has held that the Code's provision that a person alleged to be incapacitated "is entitled to be present by counsel" necessarily implies that the person has the right to retain counsel.4

The Right to Contract

The right to retain counsel is meaningless if respondents cannot contract with an attorney of their choosing. Cases arise in which a fiduciary attempts to deny payment of legal fees and costs from the respondent's estate, alleging that the temporary orders prevented the respondent from legally entering into an engagement contract. This is not the case under Colorado law. Whether a contract for legal services entered into by respondents is legally binding on their...