Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Protective Proceeding of Amy D. (1/14/2022) sp-7577

In the Matter of the Protective Proceeding of Amy D. (1/14/2022) sp-7577

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                    

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                      

          corrections@akcourts.gov.  



                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



In  the  Matter  of  the  Protective  Proceeding	 )  

of	                                                                 )    Supreme  Court  No.  S-17798  

                                                                    )  

                                                                                                                                

AMY D.	                                                             )    Superior Court No.  1JU-10-00300 PR  

                                                                    )  

                                                                    )                        

                                                                         O P I N I O N  

                                                                    )  

                                                                    )                                          

                                                                        No. 7577 - January 14, 2022  



                                                                                                                    

                     Appeal from the Superior Court of the State of Alaska, First  

                                                                                                

                     Judicial District, Juneau, Philip M. Pallenberg, Judge.  



                                                                                                            

                     Appearances:  Larissa Hail, Assistant Public Advocate, Beth  

                                                                                                    

                     Goldstein,  Deputy  Director,  and  James  Stinson,  Director,  

                                                                                                              

                     Office  of  Public  Advocacy,  Anchorage,  for  Amy  D.   No  

                                                                     

                     appearance by J.D. (mother).  



                                                                                                                    

                     Before: Winfree, Maassen, Carney, and Borghesan, Justices.  

                                                                

                     [Bolger, Chief Justice, not participating.]  



                                                

                     BORGHESAN, Justice.  



I.        INTRODUCTION  



                                                                                         

                     A mother no longer wished to serve as her adult daughter's guardian due  



                                                                                                                        

to  fear  of her  daughter's violence.                     The  superior  court held  a hearing  to  determine  



                                                                                                                                    

whether to allow the mother to resign and appoint a public guardian from the Office of  



                                                                                                                                

Public  Advocacy  (OPA) to  serve  as the  daughter's  guardian  instead.   After  a brief  



                                                                                                                                  

exchange, the  superior court allowed the daughter to waive her right to counsel and  



                                                                                                                                   

consent to appointment of a public guardian.  We reverse because the superior court did  


----------------------- Page 2-----------------------

not sufficiently establish that the waiver of counsel was knowing and voluntary.                                                                                      We  



                                                                                                                         1  

remand for further proceedings consistent with this opinion.                                                                 



                                            

II.           FACTS AND PROCEEDINGS  



              A.           Facts  

                                           2 is a young woman who has struggled with her mental health since  

                                                                                                                                                                     

                                       

                           Amy D. 

she was a teenager and has been diagnosed with schizoaffective disorder, bipolar type,3  

                                                                                                                                                                                



with a history of polysubstance abuse.  Amy has been hospitalized numerous times due  

                                                                                                                                                                        



to her mental health issues and has had many contacts with law enforcement, particularly  

                                                                                                                                                        



after using drugs or alcohol.  

                                          



                           In2011thesuperior courtappointed Amy's mother as her fullguardianwith  

                                                                                                                                                                      



complete discretion to manage Amy's finances, housing, and medical treatment.   A  

                                                                                                                                                                          



report prepared by the court visitor indicated that Amy had recently experienced "an  

                                                                                                                                                                       



increase in aggressive behavior" and that "her ability to meet all of her needs" was  

                                                                                                                                                                      



"marginal" without assistance. The visitor added that Amy "hasavery supportive family  

                                                                                                                                                                  



who  are  very  willing  to  offer  help  and  support  as  well  as  housing  and  as  much  

                                                                                                                                                                   



independence  as  is  possible  under  the  current  circumstances."                                                                     During  the  initial  

                                                                                                                                                                  



appointment proceedings, Amy was represented by an attorney from OPA because she  

                                                                                                                                                                        



              1            The public guardian shall continue to serve as the ward's full guardian                                                           



pending resolution of these proceedings on remand.                                                        



              2            We use pseudonyms to protect the parties' privacy.  

                                                                                                                   



              3            A schizoaffective disorder is "an illness manifested by an enduring major  

                                                                                                                                                                   

depressive, manic, or mixed episode along with delusions, hallucinations, disorganized  

                                                                                                                                                     

speech  and  behavior,  and  negative  symptoms  of  schizophrenia."                                                                            Schizoaffective  

                                                                                                                                               

Disorder, STEDMAN'S  MEDICAL  DICTIONARY  (2014).   Bipolar disorder is "an affective                                                                        

                      

disorder characterized by the occurrence of alternating manic, hypomanic, or mixed                                                                                

episodes and with major depressive episodes."                                                 Bipolar Disorder                   , S   TEDMAN'S  MEDICAL  

DICTIONARY (2014).  

                            



                                                                                 -2-                                                                                7577
  


----------------------- Page 3-----------------------

was financially unable to employ an attorney. OPA's representation of Amy terminated                                                                                                                                                                                         



on the date of her mother's appointment.                                                          



                                                Threeyearslater thecourt visitor's                                                                                      report describedimprovement                                                                               in Amy's  



mental health.                                      The report observed that although Amy was no longer able to live with                                                                                                                                                                          



her mother because of past violence between them, Amy and her mother had "frequent                                                                                                                                                                                               



contact" and "appear to be on much better footing at this point."                                                                                                                                                                                Amy still needed   



housing   assistance   and   alternated   staying   with   one   of   her   two   sisters.     The   visitor  



recommended no changes to the guardianship at that time, and none were made.                                                                                                                                                                                           



                                               In August 2019 the court visitor filed another report showing that Amy's                                                                                                                   



mental health had regressed and her relationship with her mother had deteriorated. Amy                                                                                                                                                                                                           



had been hospitalized twice in the previous year; the second hospitalization was due to                                                                                                                                                                                                                     



                                                                                                                [4]  

                                                                                                                                                                                                                                                                  

"significant   decompensation[,]                                                                                            [including]  auditory  hallucination[,]  disorganized  



                                                                                                                                                                                                                                                                                              

behavior, and aggression." The visitor cautioned that although Amy currently had stable  



                                                                                                                                                                                                                                                                                                     

housing, without further assistance she was at risk of becoming homeless. Amy was also  



                                                                                                                                                                                                                                                   

completely  reliant  on  public  assistance,  including  Supplemental  Security  Income  



                                                                                                                                                                                                                                                                                                

benefits, Adult Public Assistance, and her yearly Permanent Fund Dividend.  The court  



                                                                                                                                                                                                                                                                                           

visitor  reported  that  Amy  was  unlikely  to  recover  or  improve  her  mental  health  



significantly.  



                                                                                                                                                                                                                                                                                     

                                                The court visitor recommended to the court that Amy's mother be replaced  



                                                                                                                                                                                     5  

                                                                                                                                                                                                                                                                                                      

as Amy's full guardian by an OPA public guardian.                                                                                                                                          According to the visitor, Amy had  



                                                                                                                                                                                                                                                                                                          

attacked her mother, chased her from her home, and threatened to kill her.  Amy was no  



                        4                      Decompensation is "[t]he appearance or exacerbation of a mental disorder                                                                                                                                                              



due   to   a   failure   of   defense   mechanisms."     Decompensation,   STEDMAN 'S   MEDICAL  

DICTIONARY  (2014).  



                        5                      AS 13.26.710(b) ("A court may order the public guardian to act as full                                                                                                                                                                                 



guardian"); AS 13.26.720 (describing "powers and duties of public guardian").                                                                                                                                                                    



                                                                                                                                              -3-                                                                                                                                                7577
  


----------------------- Page 4-----------------------

                                                 

longer allowed in her mother's home, and they only communicated by phone.  Due to  



                                                                                                                          

the decline in their relationship, Amy's mother told the visitor that she could no longer  



                   

continue as guardian.  



          B.        Proceedings  



                                                                                                                                  

                    In response to the court visitor's report, the superior court scheduled a  



                                                                                                                        

hearing to review the guardianship in November 2019.  Due to a service error, nobody  



                                                                                                                              

attended this hearing, so the court rescheduled the review hearing for January 2020 and  



                                                                                                                        

sent notice of the hearing to Amy's mother and the court visitor.  OPA was not notified  



           

of the hearing.  



                                                                                                                              

                    Present at the hearing were Amy, her mother, and the court visitor.  The  



                                                                                                                     

court indicated that the issue before it was whether a public guardian should be appointed  



                                                                                                                       

to  take  over  the  guardianship  from  Amy's  mother  pursuant  to  the  court  visitor's  



                                                                                 

recommendation.  The court then directly addressed Amy:  



                                                                                                               

                    THE COURT:  [Amy], the recommendation was made that I  

                                                                                                     

                    substitute the public guardian as your guardian to handle  

                                                                                                   

                    things, to handle your finances and your affairs for you.  



                                                                                                                 

                    You have a right to be represented by a lawyer in this case.  

                                                                                                 

                    The law says that you are entitled to have a lawyer appointed  

                                                                                                         

                    by the court, paid for by the court, to represent you, to give  

                                                                                                        

                    you advice about whether that's a good thing or a bad thing  

                                                                

                    for you, and to advocate for you.  



                                                                                                  

                    And  if  .  .  .  you're  okay  with  having  the  public  guardian  

                                                                                           

                    appointed and you don't feel like you need a lawyer, that's  

                                                                                                          

                    fine, I would go ahead and make that change.   But if you  

                                                                                                

                    want to consult with a lawyer about that, you . . . absolutely  

                                                                                                    

                    have a right to do that and to get some advice about that.  



                                                                                                   

                    AMY:  I think I'm - this is going to be my final decision  

                                                                                                          

                    just to go ahead and agree with what people think about, you  

                                                                      

                    know, my guardianship.  So -  



                                                                                                   

                    THE COURT:  Okay.  You think you're okay with that?  



                                                             -4-                                                           7577
  


----------------------- Page 5-----------------------

                                

                    AMY:  Yeah.
  



                                                                                                   

                    THE COURT:  All right.  And, [Amy's mother], let me ask
  

                                                                                                         

                    you about that.  I mean, are you comfortable with that?  Do
  

                                                         

                    you think that's the best thing?
  



                                                                                                              

                    AMY'S MOTHER: Of course I have mixed emotions, but -
  



                                            

                    THE COURT:  Sure.
  



                                                                                                          

                    AMY'S MOTHER:  Yeah, I think going forward would be
  

                                             

                    -  probably be best.
  



                                                                                                  

                    THE  COURT:                Okay.         And  do  you  feel  like  [Amy]
  

                                                                                              

                    understands that?  I mean, her agreeing to that is sufficient? 
 

                                                                                                    

                    Do you think it would be okay to go ahead without a lawyer
  

                                                                                                   

                    or do you think we should get somebody involved to consult
  

                            

                    with her?
  



                                                                                  

                    AMY'S MOTHER:  I think that's okay.  Yeah.
  



                                                                                                         

                    THE  COURT:              All  right.      I  don't  want  to  make  this  all
  

                                                            

                    legalistic if we don't need to.
  



                                                               

                    AMY'S MOTHER:  Yeah.  No.
  



                                                                                                          

                    THE COURT:  And there's no need to burn state money to
  

                                                                                                         

                    hire a lawyer if we don't need to. But I want to make sure we
  

                                                                        

                    dot the i's and we do this the right way.
  



                                                                                                              

                    [Visitor], are you comfortable with that?  With the Court -
  



                                                           

                    COURT VISITOR:  Yes, sir.
  



                                                                                                     

                    THE COURT: - simply entering that order, you think that's
  

                    appropriate?
  



                                                           

                    COURT VISITOR:  Yes, sir.  



                                                                                                                            

Except for the two responses quoted above, Amy did not speak during the hearing.  The  



                                                                                                                            

court instead spent most of the seven-minute hearing speaking with Amy's mother and  



                                                                                                                       

the court visitor.  The court concluded the hearing by telling the parties that it would  



                                                                                       

issue an order appointing a public guardian as Amy's full guardian.  



                                                           -5-                                                           7577
  


----------------------- Page 6-----------------------

                                                                 Four months later, the court issued a written order appointing a public                                                                                                                                                                                                                                                              



guardian  as Amy's full guardian.                                                                                                                                            The order stated that both Amy and her mother                                                                                                                                                                       



"appeared at the hearing, and both were in agreement that OPA should be appointed as                                                                                                                                                                                                                                                                                                                                        



guardian."   It indicated that a formal guardianship order would follow.                                                                                                                                                                                                                                              



                                                                  The formal order - issued on a pre-printed court form - made several                                                                                                                                                                                                                                                            



 findings of fact and conclusions of law.                                                                                                                                                        First, the court found that "[i]t has been shown                                                                                                                                                     



by   clear   and   convincing   evidence   that   the   respondent   is   incapacitated"   under   the  



definition   of   incapacity   provided   in   the   guardianship   statutes.     Second,   the   court  



appointed a public guardian as Amy's full guardian and conservator, finding that "[t]he                                                                                                                                                                                                                                                                                                                   



respondent   is   totally   without   capacity   to   care   for   []herself,   and   a   combination   of  



alternatives to guardianship and the appointment of a partial guardian is not feasible or                                                                                                                                                                                                                                                                                                                                  



adequate to meet the needs of the respondent."                                                                                                                                                                                           Third, the court found that the public                                                                                                                       



guardian was suitable as Amy's guardian and conservator, because "[n]o person having                                                                                                                                                                                                                                                                                                                



priority   is   able   to   serve."     Finally,   the   court   found   that   it   had   considered   Amy's  



preference in selecting a guardian and conservator.                                                                                                                                         



                                                                  OPA requested a motion for entry of final judgment after being notified of                                                                                                                                                                                                                                                                                



its appointment as guardian.                                                                                                               Amy filed this appeal shortly thereafter with assistance of                                                                                                                                                                                                                     



counsel from OPA.                                                 



III.                             DISCUSSION  



                                                                  On appeal Amy argues that the superior court erred by allowing her to                                                                                                                                                                                                                                                                                    



proceed without assistance of counsel at a hearing to decide whether to allow her mother                                                                                                                                                                                                                                                                                                           



to resign as guardian and to appoint a public guardian instead.                                                                                                                                                                                                                                                         We conclude that the                                                                          

                                                                                                                                                                                                                                                                                                                                                                   6  and that the  

guardianship statutes afford Amy a right to counsel in this proceeding                                                                                                                                                                                                                                                                                                                                               



                                 6                                The superior court acknowledged that Amy had a right to counsel in the                                                                                                                                                                                                                                                                              



proceedings below, and Amy - the only party participating in this appeal - also                                                                                                                                                                                                                                                                                                                                 

                                                                                                                                                                                                                                                                                                                                                                      (continued...)  



                                                                                                                                                                                                    -6-                                                                                                                                                                                                        7577
  


----------------------- Page 7-----------------------

superior court did not undertake a sufficient inquiry into whether Amy's waiver of this                                                                 



right was knowing and voluntary.                                We therefore remand.      



            A.	         A   Ward Has A Right                          To   Appointed Counsel When The Superior                              

                        Court Considers A Guardian's Request To Resign And Have A New                                                            

                        Guardian Appointed.   



                        Determining   whether   Amy   had   a   right   to   appointed   counsel  in  this  



guardianship   proceeding   requires   us   to   interpret  the   guardianship   statutes.     The  



                                                                                                                              7  

interpretation of a statute is a question of law that we review de novo.                                                                  

                                                                                                                                  "In conducting  



                                                                                                                                                          

de novo  review,  we will 'adopt the rule of law that is most  persuasive in light of  



                                                                8 

                                                                                                                                             

precedent,  reason,  and  policy.'  "                                We  use  a  sliding  scale  approach  to  statutory  



                                                                                                                                               

interpretation:  "the clearer the statutory language, the more convincing any contrary  



                                                                                                                                  9  

                                                                                                                                                       

legislative history must be to overcome the statute's plain meaning."                                                                  "Words and  



                                                                                                                                                     

phrases shall be construed according to the rules of grammar and according to their  



                                                         10  

                                                             

common and approved usage." 



                                                                                                                                                         

                        When  a  person  files  a  petition  for  appointment  of  a  guardian  for  an  



                                                                                                                                                   

allegedly incapacitated person, the guardianship statutes expressly provide that "[t]he  



            6           (...continued)  



                                                                                                                                                  

maintains that she had a right to counsel in the proceedings both as a matter of statute  

                                                                                                                                                          

and of due process.  Although no one in this proceeding, either in the superior court or  

                                                                                                                                             

on appeal, has disputed Amy's right to counsel, we nevertheless address this threshold  

                                     

issue in her appeal.  



            7           Se. Alaska Conservation Council, Inc. v. Dep't of Nat. Res., 470 P.3d 129,  

                                                                                                                                                      

 136 (Alaska 2020).  

                        



            8           Id.  (quoting State, Div. of Elections v. Green Party of Alaska, 118 P.3d  

                                                                                                                                                      

 1054, 1059 (Alaska 2005)).  

                                                    



            9           Id. at 141.  

                                    



            10          AS 01.10.040.  

                                



                                                                         -7-	                                                                       7577
  


----------------------- Page 8-----------------------

                                                                                                                                            11  

respondent is entitled to be represented by an attorney in the proceedings."                                                                     "If the   



respondent is financially unable to employ an attorney, the court shall appoint the office                                                          

                                                                                                                               12   This language  

of public advocacy . . . to represent the respondent in the proceedings."                                                                     



suggests,  but  does  not  expressly  state,  that  the  appointment  of  counsel  pertains  to  

                                                                                                                                         



"proceedings" on the petition to appoint the guardian and does not normally extend  

                                                                                                                                                 

beyond.  The court system's form guardianship order reflects this assumption.13  

                                                                                                                                                   



                        The guardianship statutes do not expressly refer to the ward's right to be  



represented  by  counsel  when  the  guardian  seeks  to  resign,  a  process  governed  by  

                                                                                                                                                         

AS 13.26.286.14  But the legislative intent that the ward have a right to be represented by  

                                                                                                                                                          



counsel in this situation is fairly clear in light of the procedures set forth in statute.  The  

                                                                                                                                                       



legislature established a procedure for a guardian's resignation or removal:  

                                                                                                                                           



                        Before   removing   a   guardian,   changing   the   guardian's  

                                                                                                                 

                        responsibilities, accepting the resignation of a guardian, or  

                                                                                                               

                        ordering            that   a   ward's   guardianship   be   changed   or  

                                                                                                                                

                        terminated,  the  court, following  the  same  procedures  to  

                                                                                                                                 



            11          AS   13.26.226(b).  



            12          Id .   



            13          Form   PG-400   ("Order   Appointing   Full   Guardian   With   Powers  Of  



Conservator")  (9/20)  contains  a  section  for  the  court  to  indicate  when  appointment  of  the  

respondent's  attorney  ends.  The  form  contains  three  options  to  choose  from:   (1)  the  

appointment  ends  on  the  date  the  order  is  signed;  (2)  the  appointment  ends  30  days  after  

the  guardianship  implementation  report  is  filed;  or  (3)  a  blank  space  in  which  the  court  

can  write  the  date  on  which  the  appointment  ends.     



            14          AS 13.26.286(a) provides that "[o]n petition of the guardian, the court may  

                                                                                                                                                       

accept a resignation and make any other order that may be appropriate."  Here, Amy's  

                                                                                                                                                  

mother did not formally petition to resign.  Instead, she made this wish known to the  

                                                                                                                                                        

court visitor, who brought the matter to the superior court's attention in the visitor's  

                                                                                                                                               

written report.  Notwithstanding the lack of formal petition to resign, this proceeding  

                                                                                                                                          

entails the resignation of a guardian and is therefore governed by AS  13.26.286.  

                                                                                                                                                     



                                                                         -8-                                                                        7577
  


----------------------- Page 9-----------------------

                             safeguard the rights of the ward as apply to a petition for                                                                

                             appointment of a guardian                                  and applying the least restrictive               

                             alternative   necessary   to   meet   the   needs   of   the   ward   after  

                             consideration of alternatives to guardianship services, may                                                             

                             send a visitor to the residence of the present guardian and to                                                                

                             the place where the ward resides or is detained, to observe                                                     

                             conditions and report in writing to the court.                                                  [15]  



In other words, before accepting the resignation of a guardian, the court must apply the  

                                                                                                                                                                                     



same protective procedures that apply to an initial petition to appoint a guardian.  These  

                                                                                                                                                                               

protective procedures include the appointment of counsel for an indigent person16 and  



the court visitor's duty to explain to the respondent the scope of the respondent's right  

                                                                                                                                                                                 



to counsel, including the right to have an attorney designated "to advise and represent  

                                                                                                                                                                       

the respondent before and at any judicial hearings."17  This provision reflects a legislative  

                                                                                                                                                                    



intent that when a guardian seeks to resign, prompting appointment of a new guardian,  

                                                                                                                                                                       



the ward shall have the assistance of an attorney during the process.  

                                                                                                                                                    



                             Further indication of legislative intent that a ward shall have the right to  

                                                                                                                                                                                       



counsel  in  proceedings  for  the  guardian's  resignation  or  removal  is  found  in  

                                                                                                                                                                     



AS 13.26.296. This statute requires the court to notify a respondent's or ward's attorney  

                                                                                                                                                                          



of  a  hearing  "[i]n  a  proceeding  for  the  appointment,  change  in  responsibilities,  or  

                                                                                                                                                                                      



removal of a guardian, or termination of guardianship, other than the appointment of a  

                                                                                                                                                                                         

temporary guardian or temporary suspension of a guardian."18   Although AS 13.26.296  

                                                                                                                                                                      



refers only to removal, not resignation, the notice requirement logically applies to the  

                                                                                                                                                              



latter as well:   Accepting a guardian's resignation necessarily entails the guardian's  

                                                                                                                                                                    



               15            AS 13.26.286(c) (emphasis added).                            



               16  

                                      

                             AS 13.26.226(b).  



               17  

                                      

                             AS 13.26.231(a)(3).  



               18  

                                                                           

                             AS 13.26.296(a)(6).  



                                                                                       -9-                                                                                      7577
  


----------------------- Page 10-----------------------

removal (and therefore has the same potential to affect the ward's interests).                                                                                                               And the   



legislature treats resignation and removal of the guardian the same for purposes of the                                                                                                                    



procedural protections described in AS 13.26.286.                                                                                In light of these provisions it is                                           



evident that the legislature intended a ward to have a right to counsel in proceedings on                                                                                                                    



                                                                           19  

a guardian's petition to resign.                                                 



                                 The superior court correctly acknowledged that Amy was entitled to be  

                                                                                                                                                                                                             



represented by counsel at the hearing to decide to appoint a public guardian to replace  

                                                                                                                                                                                           



her mother as guardian.  We therefore consider whether Amy's waiver of counsel was  

                                                                                                                                                                               

effective.20  

                               



                 B.              Amy's Waiver Of Her Right To Counsel Was Not Effective.  

                                                                                                                                                                    



                                 Amy argues that the superior court failed to ensure that her waiver of the  

                                                                                                                                                                                                           



right to counsel was "knowing and voluntar[y]." We agree. When a respondent or ward  

                                                                                                                                                                                                       



in a guardianship proceeding seeks to waive the right to counsel, the superior court must  

                                                                                                                                                                                                       



                 19              See McDonnell v. State Farm Mut. Auto. Ins. Co.                                                                                , 299 P.3d 715, 721                      



(Alaska 2013) ("[W]e must, whenever possible, interpret each part or section of a statute                                                                                                         

with every other part or section, so as to create a harmonious whole." (quoting                                                                                                                     State,  

Dep't of Com., Cmty., & Econ. Dev., Div. of Ins. v. Progressive Cas. Ins. Co.                                                                                                             , 165 P.3d     

624, 629 (Alaska 2007))).                   



                20               Although Amy's arguments focus on the sufficiency of her waiver, we note  

                                                                                                                                                                                                         

another procedural issue with the proceedings below.  In light of the analysis above,  

                                                                                                                                                                                                  

Amy's counsel was entitled under AS 13.26.296 to notice of the hearing at which her  

                                                                                                                                                                                                           

mother's resignation as guardian would be considered.  However, there is no indication  

                                                                                                                                                                                           

that  Amy  had  counsel  at  that  time.                                                            Although  she  was  represented  by  OPA  in  

                                                                                                                                                                                                             

proceedings  on  the  initial  petition  to  appoint  a  guardian  for  her  in  2011,  OPA's  

                                                                                                                                                                                                 

representation terminated on the date of the order appointing her guardian:  January 17,  

                                                                                                                                                                                                           

2011.   Because Amy had a right to be represented by counsel at the January 2020  

                                                                                                                                                                                                      

resignation hearing, it was incumbent on the superior court to determine prior to the  

                                                                                                                                                                                                           

resignation hearing whether she was currently represented by counsel so that proper  

                                                                                                                                                                                                  

notice  could  be  provided  or  appointment  of  counsel  at  public  expense  could  be  

                                                                                                                                                                                                           

considered.  

                               



                                                                                                  -10-                                                                                                7577
  


----------------------- Page 11-----------------------

                                                                                                                                             21  

conduct the three-part inquiry described in                                                     McCracken v. State                               in deciding whether to                         



accept the waiver.                          The superior court's brief colloquy with Amy in this case did not                                                                                



satisfy this test.                   



                               1.	           The   superior   court   must   apply  the   three-part   inquiry   from  

                                             McCracken v. State                             to determine effective waiver of the right to                                                       

                                             counsel in guardianship proceedings.                                                        



                              We   recently   held   in   In   re   Hospitalization   of   Arthur   A.   that  when   a  



respondent in a civil commitment proceeding "clearly and unequivocally invokes the                                                                                                           



self-representation right, the superior court must hold a preliminary hearing and consider                                                                                       



factors we outlined in                               McCracken v. State                               to determine whether self-representation           

should be allowed."22  Although Amy did not invoke her right to represent herself but  



                                                                                                                                                                                              

rather waived her right to counsel at the superior court's suggestion, the concerns are the  



                                                                                                                                                                              

same:  whether the decision to go without counsel is knowing and voluntary.  Therefore  



                                                                                                                                                          

we conclude that the McCracken inquiry applies when considering whether to allow a  



                                                                                                                                                              

respondent or ward in guardianship proceedings to waive the right to counsel.  



                                                                                                                                                                       

                              In In re Arthur A.  a hospital initiated a 30-day involuntary commitment  



                                                                                                                                                                     

petition  against  a  respondent  alleged  to  be  actively  psychotic  and  experiencing  

                       23  At the commitment hearing, the respondent's attorney informed the court  

delusions.                                                                                                                            

that the respondent wished to represent himself.24  The court was prepared to find that  

                                                                                                                                            



the respondent was not mentally fit to represent himself based on the petition alone, but  

                                                                                                                                                                                             



               21             518 P.2d 85 (Alaska 1974).                       



               22  

                                                                                                             

                              457 P.3d 540, 543 (Alaska 2020).  



               23  

                                            

                              Id. at 544.  



               24             Id.  



                                                                                           -11-	                                                                                         7577
  


----------------------- Page 12-----------------------

                                                                                                                                  25  

the respondent asked to be evaluated by a psychiatrist first.                                                                          After the psychiatrist's     



testimony, the superior court found that "with the benefit of that direct testimony," it                                                                                               



                                                                                                                                                       26  

would "deny, finally, [respondent's] application to represent himself."                                                                                      



                                                                                                                                                              

                             We reversed because the superior court's inquiry into the respondent's  

                                                                                                       27     The  right  to  self-representation  is  

                                                                                                                                                                                      

capacity  to  represent  himself  was  inadequate. 



important but not absolute, and the court has a duty to "ensure that the respondent's  

                                                                                                                                                              



waiver of counsel is knowing and intelligent, meaning that the respondent understands  

                                                                                                                                                                 



the right to counsel, the important advantages of having counsel, and the dangers of  

                                                                                                                                                                                      

declining counsel."28                           For that reason, we held that the court should have applied the  

                                                                                                                                                                                    



three-step inquiry from McCracken v. State (involving the right of a petitioner for post- 

                                                                                                                                                                                



conviction relief to represent himself) to assess the respondent's competence to self- 

                                                                                                                                                                                



                     29  

represent.                 



                             This inquiry requires the court to determine whether the person seeking to  

                                                                                                                                                                                       



self-represent:  (1) is "capable of presenting . . . allegations in a rational and coherent  

                                                                                                                                           



manner"; (2) "understands the benefits of counsel and knowingly waives the same"; and  

                                                                                                                                                                                   



(3)  "is willing to [present evidence and argument] . . . with at least a modicum of  

                                                                                                                                                                                     

courtroom decorum."30                               Findings on "these inquiries must 'appear affirmatively on the  

                                                                                                                                                                                    



record,' but a negative finding under any one of the three inquiries is sufficient to justify  

                                                                                                                                                                             



              25            Id.
  



              26            Id.  at 545 (quoting superior court).
                        



              27            Id . at 549-50.     



              28            Id.  at 548.   



              29            Id.  at 547-49.   



              30            Id.  at 547.   



                                                                                      -12-                                                                                     7577
  


----------------------- Page 13-----------------------

denying the self-representation request."                      31  



                                                                                                                                   

                     Courts must use the same inquiry to evaluate the waiver of the right to  



                                                                                                                  

counsel  in  guardianship  proceedings.                         Guardianship  and  involuntary  commitment  



                                                                                                                            

proceedings are distinguishable in many respects, but their similarities warrant a similar  



                                                                                                                                

rule  for  determining  when  the  respondent's  (or  ward's)  waiver  is  knowing  and  

                32   Involuntary commitment and guardianship both entail significant loss of  

voluntary.                                                                                                                         



autonomy for the respondent. Although involuntary commitment is a more drastic legal  

                                                                                                                               

remedy since it results in actual confinement,33  a guardianship also severely burdens the  

                                                                                                                                  

ward's freedom by allowing another person to manage the ward's affairs.34   A guardian  

                                                                                                                         



may be granted authority over significant aspects of the ward's life, such as housing,  

                                                                                                                         



educational and vocational services, medical and mental health treatment, and the use  

                                                                                                                                 

                                                                                        35   And although involuntary  

and disposal of the ward's property, income, and estate.                                                             

                                                                               

commitment is more limiting, guardianships typically last much longer.36   For example,  

                                                                                                                         



Amy's  guardianship  has  lasted  more  than  a  decade.                                 By  contrast,  an  involuntary  

                                                                                                                    



          31        Id.   (first   quoting   O'Dell   v. Mun. of  Anchorage ,   576   P.2d   104,   107-08  



(Alaska  1978);  and  then  citing  Jensen  D.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Off.  of  

Child.'s  Servs.,  424  P.3d  385,  389  (Alaska  2018)).  



          32         See id. at 546 (citing Barry H. v. State, Dep't of Health & Soc. Servs., Off.  

                                                                                                                                 

of Child.'s Servs., 404 P.3d 1231, 1234-35 (Alaska 2017)).  

                                                                                 



          33         See  AS  47.30.735(c)  ("[T]he  court  may  commit  the  respondent  to  a  

                                                                                                                                    

treatment facility for not more than 30 days if it finds, by clear and convincing evidence,  

                                                                                                                        

that the respondent is mentally ill and as a result is likely to cause harm to the respondent  

                                                                                                                      

or others or is gravely disabled."); AS 47.30.755(a) (same for 90 days).  

                                                                                                      



          34         AS  13.26.251(c).  

                            



          35         See AS  13.26.266(b)(1)-(7).  

                                  



          36         See AS  13.26.276(a) (requiring guardians to submit annual reports to the  

                                                                                                                                  

court).  



                                                              -13-                                                            7577
  


----------------------- Page 14-----------------------

commitment order expires after 30 or 90 days.                                37  



                                                                                                                                                 

                      In addition, guardianship and involuntary commitment proceedings are  



                                                                                                                                       

both premised on allegations that the respondent's mental capacity is deficient in some  

             38  Given the nature of these proceedings, it is essential that the court carefully  

respect.                                                                                                         



consider a respondent's capacity to self-represent when deciding whether to allow the  

                                                                                                                                          



respondent to exercise that right.  Undertaking the inquiry outlined in McCracken  is  

                                                                                                                                            



therefore required before the respondent or ward may waive the right to counsel in  

                                                                                                                                            



guardianship proceedings.  

                        



                      2.	        The  court's  brief  colloquy  with  Amy  did  not  satisfy  the  

                                                                                                                                         

                                 McCracken standard.  

                                                                         



                      As  discussed  above,  the  superior  court  must  conduct  the  three-step  

                                                                                                                              



McCracken  inquiry before accepting waiver of the right to counsel in guardianship  

                                                                                                                          



proceedings.   First, the court must determine whether the respondent is capable of  

                                                                                                                                           

presenting allegations in a "rational and coherent manner."39                                           Second, the court must  

                                                                                                                                       



"satisfy [itself] that the [respondent] understands precisely what [the respondent] is  

                                                                                                                                            

giving up by declining the assistance of counsel."40                                 And third, the court must determine  

                                                                                                                               



that the respondent is "willing to [present evidence and argument] . . . with at least a  

                                                                                                                                             



           37	        AS 47.30.735(c); AS 47.30.755(a).       



           38  

                                                                                                                                      

                      AS 47.30.730(a) (providing that petition for civil commitment must allege  

                                                             

respondent is "mentally ill and as a result is likely to cause harm to self or others or is  

gravely  disabled");   AS   13.26.221(b)   (providing   that   petition   for   guardianship   of  

                                                                                                                      

incapacitated person must allege "the nature and degree of the alleged incapacity").  



           39         In  re  Hospitalization  of  Arthur  A.,  457  P.3d  540,  547  (Alaska  2020)  

                                                                                                                                     

(quoting McCracken v. State, 518 P.2d 85, 91 (Alaska 1974)).  

                                                                                            



           40         Id. (quoting McCracken, 518 P.2d at 91-92).  

                                                                                     



                                                                  -14-	                                                               7577
  


----------------------- Page 15-----------------------

                                                         41  

modicum of courtroom decorum."                                Failure to make the findings or engage in the                           



                                                                                           42  

colloquy required by               McCracken  amounts to legal error.                          



                     Thesuperior court's briefcolloquy withAmy does not satisfy this standard.  

                                                                                                                                             



With regard to the first and third inquiries, the court only asked Amy two questions to  

                                                                                                                        



which she gave two short responses, one of which was interrupted. This brief exchange  

                                                                                                                             



does not establish that Amy was "capable of presenting [her] arguments in a rational and  

                                                                                                                                      

coherent manner" or with "a modicum of courtroom decorum."43  

                                                                                                          



                     Nor does the record establish that Amy understood the benefit of counsel  

                                                                                                                               



and what she was giving up by waiving her right.  The superior court asked whether  

                                                                                                                              



Amy  waived  her  right  to  counsel  and  consented  to  the  change  in  guardianship  

                                                                                                                      



simultaneously in the same sentence.  In reply, Amy gave a non-responsive answer to  

                                                                                                                                        



this two-part question stating that she believed that her "final decision" was that she  

                                                                                                                                      



wished to just "go ahead and agree with what people think about . . . [her] guardianship."  

                                                                                                                                             



Instead of stopping to clarify whether Amy understood the significance of each distinct  

                                                                                                                                



question, the court stated, "You think you're okay with that?" to which Amy responded,  

                                                                                                                          



"Yeah."  



                     Amy'snon-responsiveanswer followedbyherone-wordaffirmation to the  

                                                                                                                                       



court's two-part question does not show that she appreciated that she was agreeing to  

                                                                                                                                        



two very different things:   waiving her right to counsel and consenting to the new  

                                                                                                                                    



guardianship.  It seems especially critical for the court to ensure that Amy appreciated  

                                                                                                                         



this distinction, since the court had previously found her to have an impaired "ability to  

                                                                                                                                         



           41        Id.  (quoting  McCracken, 518 P.2d at 92).                   



           42        See id. at 550 ("[I]t was error to not make findings or engage in a discussion  

                                                                                                                           

with him, as McCracken requires, before making that determination.").  

                                                                                                                    



           43        See id. at 547, 550 (quoting McCracken, 518 P.2d at 91-92).  

                                                                                                            



                                                                -15-                                                               7577
  


----------------------- Page 16-----------------------

                                                         44  

receive and evaluate information."                           Although this prior finding of incapacity does not                           



                                                                                                      45  

allow the superior court to presume incapacity in this instance,                                                                  

                                                                                                          it requires the superior  



                                                                                                                           

court to take special care to ensure that waiver of counsel is knowing and voluntary.  



                                                                                                                                          

                      Because the superior court failed to have the discussion and make the  



                                                                                                                               

findings required to ensure that Amy's waiver of counsel was knowing and voluntary,  



                                                                                                                                                 

its decision to allow her to waive that right was legal error.  This error requires reversal.  



                                                                                     

We need not decide whether the erroneous waiver of Amy's statutory right to counsel  

                                                                                                                   46  or is subject to  

                                                                                                                                            

is a structural error requiring automatic reversal as in In re Arthur A. 

harmless error analysis47  because we cannot conclude that the error was harmless.  The  

                                                                                                                                         



record suggests that Amy had other family members living in the same community.  An  

                                                                                                                                           



attorney may have helped Amy identify one of these family members, or another person,  

                                                                                                                                    



to serve as Amy's guardian, obviating the need to appoint a public guardian.   We  

                                                                                                                                          

therefore remand for further proceedings.48  

                                                                         



IV.        CONCLUSION  



                      We REVERSE and REMAND the superior court's decision to allow Amy  

                                                                                                                                                 



           44         See  AS   13.26.005(5).  



           45         AS   13.26.201.  



           46         457  P.3d   at   550   ("[T]he  right  of   self-representation is a  right  that  when  



exercised   usually   increases   the   likelihood   of   a   trial   outcome   unfavorable   to   the  

defendant,   [and]   its   denial   is   not   amenable   to   'harmless   error'  analysis."   (quoting  

McKaskle  v.   Wiggins,  465  U.S.   168,   177  n.8  (1984))).  



           47         Cf. In re Hospitalization of Rabi R., 468 P.3d 721, 732-33 (Alaska 2020)  

                                                                                                                                      

(holding  superior  court's  consideration  of  unsworn  allegations  when  issuing  civil  

                                                                                                                                       

commitment order was harmless error).  

                                                        



           48         Because we remand this matter for further proceedings, we do not address  

                                                                                                                                   

OPA's argument that the public guardian was entitled to notice of the hearing to decide  

                                                                                                                                     

whether to appoint it as Amy's guardian in lieu of her mother.  

                                                                                                         



                                                                  -16-                                                                7577
  


----------------------- Page 17-----------------------

to waive her right to counsel, with instructions to promptly hold another hearing for                                                                                                                                                                                                                                                                                                                                                                                           



which Amy is appointed counsel.  At this hearing, Amy may again choose to exercise  



her right to represent herself, and the court may allow her to exercise that right in a                                                                                                                                                                                                                                                                                                                                                                                                   



manner    consistent with this opinion.                                                                                                                                                                                  The public guardian will remain Amy's full                                                                                                                                                                                                         



guardian pending resolution of the proceedings on remand.                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                  -17-                                                                                                                                                                                                               7577
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC