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Jennifer M. v. Franz Maurer, 2010 WI App 8

court of appeals decision

GAL Interview of Ward outside Presence of Adversary Counsel

¶11      The policies underlying the no-contact rule are of sufficient importance in guardianship cases that the right to counsel guaranteed by Wis. Stat. § 54.42(1)(b) includes the ward’s right to have counsel present during an interview with the guardian ad litem for the purpose of making a report to the court. A ward placed under a guardianship of the person has been found incompetent in that “the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety.” Wis. Stat. § 54.10(3)(a)2. This fact enhances the disparity in legal skill between the guardian ad litem and the ward.  Additionally, the presence of adversary counsel during an interview with the ward’s guardian ad litem prevents the guardian ad litem from manipulating the distinction between the ward’s best interests and his or her expressed interests, inquiries that may be fraught with tension. See Knight, 2002 WI 27, ¶¶53-54. Finally, to the extent such an interview may reveal information protected by the attorney-client relationship, the right to counsel helps prevent the inadvertent disclosure of privileged information.

As to how disputes between adversarial and “best-interest” counsel might be refereed, the court says, ¶12 n. 6: “Though in our view the rules governing the guardian ad litem interview are similar to those governing oral depositions in which evidence is taken subject to objection, see Wis. Stat. § 804.05(4)(b), oversight of the parties’ conduct is a matter reserved to the circuit court’s discretion.” As for SPD representation in this context, the Operations Manual explains: The State Public Defender does not provide representation in proceedings to have a person declared incompetent under section 54.34, Stats., unless the guardianship proceeding is coupled with a petition for protective placement or protective services.” See § 977.05(4)(i)8.

Guardianship/Protective Placement

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