Nomination of Guardian By Ward Overrides Wife, Friend

DECEMBER 22, 1997 VOLUME 5, NUMBER 25

Massachusetts resident James A. Smith completed his estate plan in 1989. Among the documents he signed was a durable power of attorney naming two business associates, David J. Adams and Alfred H. Carl, as his agents. The power of attorney also included a provision that, in the event a guardian or conservator was ever needed, Mr. Smith wanted Adams and Carl to be appointed.

Mr. Smith now suffers from dementia. Last year, his wife filed a petition for appointment of a guardian, asking that she and a family friend, James F. Linnehan, be appointed.

Adams and Carl, the business associates, objected to the appointment of Mrs. Smith and Linnehan. They argued that Mr. Smith had expressed his preference that they be empowered to handle his affairs, and that there was no reason to preclude them from doing so.

Mr. Smith is the principal stockholder of a continuing business, C.K. Smith and Company. Mrs. Smith, pointing out that Adams and Carl were officers of that company, argued that they would have a conflict of interest if they also served as Mr. Smith’s guardians. Mr. Smith’s interests would be better served, she insisted, by the appointment of herself and Linnehan as guardians. Despite Mr. Smith having named Adams and Carl as his guardians, she felt that she should be appointed to protect his interests.

After a hearing in which Mrs. Smith’s attorney claimed (without producing witnesses) that there was friction between the Smiths on the one hand and Adams and Carl on the other hand, the trial court agreed with Mrs. Smith. She and family friend Linnehan were appointed as guardians; Adams and Carl appealed.

The Massachusetts Court of Appeals disagreed, and referred the case back to the trial court for further hearings. The appellate court held that an individual has the right to nominate his or her own guardian, and that the preference of the ward should be respected in most circumstances.

Just because the proposed guardians have business dealings with the ward does not automatically mean they are disqualified from serving as guardians, according to the decision of the Court of Appeals. Unless there is affirmative evidence that would disqualify the business associates, Adams and Carl are entitled to appointment as Mr. Smith’s guardian. Furthermore, the burden of proof is on Mrs. Smith and Linnehan to show that there is a conflict or some other disqualification. In other words, the trial court must appoint the ward’s nominee as guardian unless there is affirmative evidence that such an appointment is not in the ward’s best interests. Guardianship of James A. Smith, Mass. App. Ct., September 11, 1997.

There are two important differences between Massachusetts law and Arizona law that should be kept in mind when considering the Smith case. First, Massachusetts continues to use the old English nomenclature, referring to guardianships of the person (what Arizonans would call simply “guardianship”) and guardianships of the estate (what in Arizona would be a “conservatorship”). The holding of the Smith case would probably be similar under Arizona law, and would apply to both guardianship and conservatorship.

Arizona law also establishes a priority list of prospective appointees, and Adams and Carl would appear above Mrs. Smith and Linnehan under both guardianship and conservatorship law in Arizona. The statute gives the judge clear authority, however, to ignore the priority order whenever there is “good cause” for doing so. That broader latitude might permit the trial court to appoint Mrs. Smith and Linnehan, though considerable weight would have been given to the power of attorney nominating Adams and Carl.

©2017 Fleming & Curti, PLC