Volume 1, Issue 2

Representing Defendants in Guardianship Proceedings: The Attorney’s Dilemma of Conflicting Responsibilities – Anne K. Pecora

Professor Pecora explores the unique problems that inhere in representations for guardianship court proceedings. She explores the constitutional aspects of due process as they apply to guardianship proceedings and argues the serious nature of guardianship and its impact on personal liberty requires the heightened concerns for due process protections of the individual available in other cases where fundamental liberty interests are at stake. To clarify the idea, Professor Pecora draws analogies form cases in family affiliations and involuntary commitment proceedings. She assesses the client’s role in the hearing process and the conflicting roles of guardian ad litem , adversarial advocate, and protector which an attorney must play. States have taken a variety of approaches to requirements of counsel for representation and placed a varying degree of burden on lawyer and court. The conflicting goals and duties expressed in ethical codes and procedures reflect the uncertainty and complexity of the issue. Finally, Professor Pecora warns that the area requires an attorney’s careful study and knowledge to navigate the conflicting demands and needs in a guardianship hearing representation.

Anne K. Pecora is Associate Professor, University of Baltimore School of Law, former Director of Legal Services to the Elderly of Baltimore City, a University of Baltimore Law School clinical program, from 1975 to 1992.