56 Pages Posted: 3 Jun 2016
Date Written: June 2, 2016
A person subject to guardianship has been judicially determined to lack legal capacity. Stripped of legal personhood, the individual becomes a ward of the state and his or her decisions are delegated to a guardian. If the guardian abuses that power or the guardianship has been wrongly imposed — as research suggests is not infrequently the case — the person subject to guardianship may rightly wish to mount a legal challenge. However, effectively doing so requires the assistance of an attorney, and persons subject to guardianship typically have not only been declared by a court to be incapable of directing their own affairs but have been stripped of the capacity to contract. As a result, those who wish to challenge the terms and conditions of their guardianship, or even merely to exercise unrelated retained rights, can be stymied because attorneys are unwilling to accept representation for fear that it is unlawful or unethical. Drawing on constitutional law, as well as the law of agency and contract, this Article shows why such representations are, contrary to the assumptions of many attorneys, not merely legally permissible but essential to protect fundamental constitutional rights. It then explores the professional rules governing attorney conduct in order to show how attorneys may ethically represent persons subject to guardianship. Finally, it proposes a modest change to the Model Rules of Professional Conduct to clarify attorneys’ duties in this context.
Keywords: Guardianship, Conservatorship, Legal Ethics, Due Process, Disability, Agency Law, Contract Law, Professional Responsibility, Elder Law
JEL Classification: K10, K12, K19, K30, K39
Suggested Citation: Suggested Citation
Kohn, Nina A. and Koss, Catheryn, Lawyers for Legal Ghosts: The Legality and Ethics of Representing Persons Subject to Guardianship (June 2, 2016). Washington Law Review, Vol. 91, No. 2, 2016. Available at SSRN: https://ssrn.com/abstract=2788912