APPENDIX. MARYLAND GUIDELINES FOR ATTORNEYS REPRESENTING MINORS AND ALLEGED DISABLED PERSONS IN...
West's Annotated Code of MarylandMaryland RulesEffective: January 1, 2020
Effective: January 1, 2020
MD Rules, App. 1
APPENDIX. MARYLAND GUIDELINES FOR ATTORNEYS REPRESENTING MINORS AND ALLEGED DISABLED PERSONS IN GUARDIANSHIP PROCEEDINGS
DEFINITIONS; INTRODUCTION AND SCOPE
In these guidelines, the word “minor” means the minor who is the subject of a guardianship proceeding, and the word “attorney” means the attorney representing the minor or alleged disabled person in a guardianship proceeding.
These Guidelines are intended to promote good practice and consistency in the appointment and performance of attorneys representing minors and alleged disabled persons in guardianship proceedings in orphans' and circuit courts. However, the failure to follow a Guideline does not itself give rise to a cause of action against an attorney, nor does it create any presumption that a legal duty has been breached. These Guidelines apply to guardianship of the person and property cases where the court may be called upon to decide whether a minor or alleged disabled person needs a guardian and whether a proposed guardian is appropriate. Nothing contained in these Guidelines is intended to alter the duty an attorney owes to a client pursuant to the Maryland Attorneys' Rules of Professional Conduct.
It is the responsibility of attorneys representing minors and alleged disabled persons in guardianship proceedings to protect the due process rights of their clients. This role is distinct from the role of an investigator appointed under Rule 10-106.2.
As clients in guardianship proceedings may have diminished capacity due to minority, mental impairment, or some other reason, the attorney should be mindful of the obligation, as far as reasonably possible, to maintain a normal client-attorney relationship as prescribed by the Maryland Attorneys' Rules of Professional Conduct. The attorney's role is to advocate for the client's position even if that position conflicts with the attorney's judgment as to what the best interest of the client, except where the attorney reasonably believes that a client with diminished capacity is at risk of substantial physical, financial, or other harm. In that instance, Rule 19-301.14 permits the attorney to take reasonably necessary protective action.
In guardianship proceedings, it is the role of the attorney to:
Given the significant loss of rights and liberties imposed on individuals under guardianship, the attorney is to ensure that:
There are instances where it is appropriate for an attorney to provide information about the minor or alleged disabled person to the court. For example, if a court directs the attorney to file a written statement pursuant to Rule 10-106.1, the attorney may provide information to help the court make case management decisions, so long as those facts do not violate Rule 19-301.6 or are not otherwise adverse to the client's stated or expressed position.
It is a conflict of interest for the attorney to be both an advocate and an investigator appointed pursuant to Rule 10-106.2; an investigator gathers information and reports findings, observations, or impressions to the court.
As in other adversarial proceedings involving clients with diminished capacity, the attorney must make decisions about how to zealously represent the client's unique interests.
Training for attorneys in guardianship proceedings should include the following topics:
(a) OVERVIEW OF GUARDIANSHIP. What a guardianship is and when it is necessary; alternatives to guardianship; the types of guardianship; the general role, responsibilities, limitations, and basic competencies required of guardians; parties to a guardianship; how attorneys are appointed in guardianship proceedings; and guardianship law and procedures.
(b) UNDERSTANDING DISABILITIES AND DIMINISHED CAPACITY. The manifestation of mental health issues; distinguishing between temporary and permanent conditions; assessing capacity; interacting with people with disabilities or diminished capacity; and types and signs of abuse (physical, sexual, and emotional), neglect (including self-neglect), and exploitation to which vulnerable persons are susceptible and how to respond to and prevent abuse, neglect, and exploitation.
(c) THE ROLE OF THE ATTORNEY. Overview of the role of the attorney; meeting with the minor or alleged disabled person and interested persons; assessing physicians', psychologists', and social workers' certificates and reviewing records; filing answers and motions; and waivers, assessing the appropriateness of the proposed guardian, identification of assets, and less restrictive alternatives.
(d) ETHICS. Applicable Maryland Attorneys' Rules of Professional Conduct, including Rules 19-301.14 (Client with Diminished Capacity), 19-301.4 (Communication), 19-301.6 (Confidentiality of Information), 19-301.2 (Scope of Representation and Allocation of Authority Between Client and Attorney), 19-301.3 (Diligence), and 19-301.7 (Conflict of Interest--General Rule).
Attorneys should complete the training before beginning representation of the client in a guardianship proceeding. Courts may waive the training requirement for attorneys with relevant guardianship experience or training.
When evaluating relevant experience of an attorney eligible for appointment under Rule 10-106 (b), courts may consider the attorney's experience in litigation, social work, mental health, health care, elder care, disability issues, and other related fields. While courts may not require attorneys to represent a minor or disabled person on a pro bono basis, they may take into account a particular attorney's willingness to accept or past history of accepting pro bono appointments.
If a court finds a reason to appoint an attorney who has not completed the training described in section 2 of these Guidelines, the attorney, whenever possible, should complete it before the first hearing in the case.
Courts should encourage attorneys seeking appointments in guardianship proceedings to maintain their knowledge of current guardianship law and practice and take advantage of available continuing education opportunities.
[Adopted Oct. 10, 2017, eff. Jan. 1, 2018. Amended Nov. 19, 2019, eff. Jan. 1, 2020.]
MD Rules, App. 1, MD R GUARD AND FIDUCIARIES App. 1
Current with amendments received through November 15, 2020.
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