10: Assignment of counsel

The following definitions apply in this rule: (a) Available funds A party's liquid assets and disposable net monthly income calculated after providing for the party's bail obligations. A party's available funds shall include the liquid assets and disposable net monthly income of the party's spouse (or person in substantially the same relationship), provided that person lives in the same residence as the party and contributes substantially towards the household's basic living costs, unless that person has an adverse interest in the proceeding (e.g. is the victim, complainant, or petitioning party, is a prospective prosecution witness, or, in a civil matter, is a party ) or unless the inclusion of the income of the party's spouse would be contrary to the interests of justice. (b) Basic living costs The average monthly amount spent for reasonable payments toward living costs, such as shelter, food, utilities, health care, transportation, clothing, education, child care, alimony and child support payments, and payments and interest on loans for such living costs. (c) Child welfare proceeding Where the party is a juvenile, a care and protection proceeding, termination of parental rights proceeding, child requiring assistance proceeding, adoption, guardianship of a minor, or permanency hearing. Where the party is a young adult, a permanency hearing. (d) Contribution fee A fee imposed by a judge pursuant to Section 10 on a party who has been determined to be indigent but able to contribute. The contribution fee shall not include the indigent counsel fee, but shall be an amount above and beyond the indigent counsel fee that the party is able to pay without substantial financial hardship for the cost of any attorney appointed to represent the party. (e) Disposable net monthly income The income remaining each month after deducting income taxes, social security and Medicare taxes, ordinary retirement contributions, union dues, and basic living costs. (f) Income Salary, wages, interest, dividends, rental income, and other earnings and regular cash payments, such as amounts received from pensions, annuities, social security, alimony, and child support. Irregular or infrequent income (e.g., earnings from day labor, seasonal, or on-call work) that a party can reasonably be expected to receive shall count as income under this rule. Irregular or infrequent income that cannot reasonably be anticipated to continue shall not count as income. (g) Indigency verification process The attempt by probation to verify a claim of indigency, in accordance with G. L. c. 211D, § 2A(c) , by a party or, where appropriate, a parent or guardian, by accessing wage, tax, and asset information in the possession of the Department of Revenue, information regarding benefits received from the Department of Transitional Assistance, and any information relevant to the determination of indigency in the possession of the Registry of Motor Vehicles. (h) Indigent A party who is: (i) receiving one of the following types of public assistance: Transitional Aid to Families with Dependent Children (TAFDC), Emergency Aid to Elderly, Disabled and Children (EAEDC), need-based veterans' benefits, Supplemental Nutrition Assistance Program (SNAP) benefits, Refugee Cash Assistance, or SSI State Supplemental Program; (ii) receiving an annual income, after taxes, of one hundred twenty-five percent or less of the current poverty guidelines referred to in G. L. c. 261, § 27A(b) ; (iii) (1) residing in a tuberculosis treatment center, a mental health facility or a facility for individuals with intellectual or developmental disabilities, including the Bridgewater State Hospital and Massachusetts Treatment Center; or (2) the subject of a proceeding regarding admission or commitment to such a center or facility, a proceeding to make a substituted judgment determination concerning treatment, a proceeding under G. L. c. 190B, § 5-309(g) to admit to a nursing facility defined in G. L. c. 190B, § 5-101(15) , or a civil commitment proceeding under G. L. c. 123, § 35 ; provided, however, that when the judge has reason to believe that the party is not indigent, a determination of indigency shall be made in accordance with Section 5 and other applicable provisions of this rule; or (iv) a juvenile, a child who is in the care or custody of the Department of Children and Families, or a young adult provided, however, that when a judge has reason to believe that the juvenile or young adult is not indigent, a determination of indigency shall be made in accordance with Section 5 and other applicable provisions of this rule. (i) Indigent but able to contribute A party who: (i) has an annual income, after taxes, of more than one hundred twenty five percent and less than two hundred fifty percent of the current poverty guidelines referred to in G. L. c. 261, § 27A(b) , or (ii) (1) is charged with a felony solely within the jurisdiction of the Superior Court or is the parent, guardian, or custodian of a juvenile or young adult who is the subject of a child welfare proceeding, subject to the exception in Section 6A for a parent or guardian who has had custody of the juvenile removed by a court of competent jurisdiction, or who has an interest adverse to the juvenile or young adult, and (2) has an annual income, after taxes, of more than two hundred fifty percent of the current poverty guidelines referred to in G. L. c. 261, § 27A(b) ; and (3) whose available funds are insufficient to pay the anticipated cost of counsel for this representation, but are sufficient to pay part of that cost. The anticipated cost of counsel shall be the cost of retaining private counsel for, as applicable, the defense of a felony charge within the jurisdiction of the Superior Court, or a child welfare proceeding, as estimated and published from time to time by the Committee for Public Counsel Services; or (iii) is over the age of eighteen and is claimed as a dependent for tax purposes by a parent or guardian who is not indigent. (j) Indigent counsel fee A fee assessed on a person provided counsel pursuant to G. L. c. 211D, § 2A(f) . (k) Intake report The report provided to the judge by probation regarding the party’s or, where appropriate, the party's parents' or guardians', responses to biographical and financial questions asked by probation. (l) Juvenile A child under the age of 18 who is the subject of a child welfare proceeding or a delinquency or youthful offender proceeding. (m) Juvenile legal fee The fee assessed on a parent or guardian to pay for the cost of any attorney appointed to represent a party under the age of 18. The fee shall not exceed the fee set forth in G.L. c. 119, § 29A or G.L. c. 119, § 39F . (n) Liquid assets Cash, savings accounts, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, and equity in a motor vehicle or other tangible property, provided that any equity in real or personal property is reasonably convertible to cash. Any motor vehicle necessary to maintain employment, including travel to and from the party’s employment, shall not be considered a liquid asset. Expenses associated with the liquidation of assets, including penalties for early withdrawal and tax burdens, shall not be included as available funds. (o) Party Any person who may be entitled to the appointment of counsel in relation to any court proceeding on the basis of indigency under the law of the Commonwealth. (p) Probation The Office of the Commissioner of Probation or any member of its staff. (q) Young adult A person between the ages of 18 and 22 who is the subject of a child welfare proceeding.