The right to a court-appointed lawyer in a guardianship case

Under Massachusetts law, the court must appoint a lawyer for the minor (child) in a guardianship case if someone asks them to. The court can also choose to appoint a lawyer for the child even if no one asked. The lawyer can be appointed at any stage during a guardianship case. This includes starting or ending the guardianship. Read the full law here: G.L. c. 190B, § 5-106.

It’s important to know that a lawyer for the child represents only the child. The lawyer doesn’t represent the person asking for guardianship or either parent. Unless the child is very young and/or has a disability that makes it too hard for them to give a clear opinion, a lawyer for the child works for what the child wants. They have to do this even if they think that what the child wants may not be in the child’s best interest.

If you want to have a lawyer represent the child and work for what the child wants, file a request for counsel form. If you are the minor in the case and are over 14 years old, you can fill out this form yourself.

If you are a guardian, you have a right to a free lawyer from the court only when:

1. A guardianship has already been established by the court,
2. A parent or other party has petitioned to remove you as the guardian or end the guardianship,
3. You are income-eligible for a court-appointed lawyer, and
4. You have been the primary caretaker for the child for at least 2 years. Or for a significant period of time during the child's lifetime. Note: The period can include time before the guardianship was established when you were primary caretaker. 

Read more about the right of a guardian to a court-appointed lawyer at: Massachusetts General Laws, Ch. 190B, § 5-212 (d).

During a case to end your guardianship, you need to file a Motion asking the court for a free lawyer. There is no specific form for this, so you need to complete the general Motion form. You write out that you are asking for a court-appointed lawyer.

To prove you are income-eligible, you need to also file a fee waiver (called an Affidavit of Indigency). This shows the court that you can’t afford a lawyer.

After you finish the motion and fee waiver forms, file them with the Registry of the Probate and Family Court in your county. The court may set a date for your motion to be heard by a judge. The judge may ask you more questions about your income to decide if you qualify for a court-appointed lawyer.

Under Massachusetts law, a parent has the right to a lawyer during a guardianship case. They can get a court-appointed lawyer if they meet certain requirements.

Read more about this right to a lawyer in the court case called Guardianship of V.V.

You have the right to a court-appointed lawyer if:

• You need to ask the court to
  • appoint a guardian for your child.
  • change something in the guardianship like parenting time or visitation.
  • end the guardianship.
• Someone else is asking the court to appoint a guardian for your child.
• Your child is asking the court to appoint a guardian for themself.

As a parent, it is important for you to have a lawyer in a guardianship case. If your child becomes involved in a guardianship case, the court should tell you that you have the right to a lawyer if you can’t afford one. You have the right to a lawyer because you could lose your right to parent your child. A guardian takes over caring for the child and making all decisions for the child. 

Even if you agree with the reasons for going to court, a lawyer can advise you and present your case to the judge. They can help you deal with important issues like:

1. If a guardian or a different form of caregiver is best for your circumstances,
2. If your child needs a different guardian,
3. How to get court-ordered parenting time, birthday, holiday, or visitation schedule,
4. How to access to your child’s medical, counseling, and educational records,
5. How to talk to your child’s doctors, counselors, and teachers,
6. Letting you to go to your child’s school and extra-curricular events, and
7. How to talk to the guardian about your child.

See these articles to learn how to ask for a court-appointed lawyer in a:

• Case to appoint a guardian for a minor
• Case to change or end a guardianship of a minor