Lawyer, Ward Both Entitled To Be At Guardianship Hearing

APRIL 27, 1998 VOLUME 5, NUMBER 43

Guardianship and conservatorship can be an expensive and wrenching process for the ward and family. No one understands that better than Letty Milstein and her children.

Ms. Milstein lives in Denver. In early 1996, her daughter decided that Ms. Milstein was no longer able to manage her own affairs and filed a guardianship and conservatorship proceeding in the Colorado courts. Ms. Milstein’s lawyer objected, and the proceeding became a contest.

While the contested proceedings were being scheduled, the Colorado court appointed a temporary guardian and conservator for Ms. Milstein. Nine months after the initial filing, Ms. Milstein’s lawyer filed a “Petition for Guidance” with the court, alleging that Ms. Milstein was no longer capable of participating in the proceedings in a meaningful way. After reading the petition, the judge assigned to the case appointed another lawyer as Ms. Milstein’s “Guardian ad litem” to serve “in lieu of counsel” and effectively removed her own attorney from the case.

Ms. Milstein’s contested guardianship hearing was scheduled for June 3, 1997. Twelve days before that date, the judge in the case went to Ms. Milstein’s home and visited her, with the guardian ad litem and a psychiatric expert witness present but without an attorney for Ms. Milstein. Based on that interview, the judge determined that Ms. Milstein was incompetent and ruled that she could not attend the hearing.

A few days before the hearing, two lawyers attempted to appear on behalf of Ms. Milstein. The judge, relying on her earlier in-home interview, decided that Ms. Milstein did not have the capacity to hire an attorney, and therefore refused to permit the lawyers to appear. In fact, when the two lawyers showed up for the June 3 hearing they were denied admittance to the courtroom.

When the judge appointed a permanent guardian and conservator for Ms. Milstein, both she and her son John appealed the ruling. They both argued that Ms. Milstein had been deprived of her constitutional right to have a lawyer represent her, and that she was absolutely entitled to be present at the hearing herself. The newly-appointed guardian and the guardian ad litem both objected, first arguing that John Milstein had no business asserting his mother’s interests, and that she lacked capacity to make the arguments for herself.

The Colorado Court of Appeals ruled that John Milstein was an interested person and had the right to participate in his mother’s case. Furthermore, Ms Milstein herself had the right to be represented, and the judge’s determination that she could not hire an attorney was overruled.

The court also held that Ms. Milstein had an absolute right to attend the hearing on her own guardianship, and that she had the right to be represented at that hearing by an attorney. A guardianad litem, noted the appellate court, is different from legal counsel even if the guardian ad litem is actually a lawyer. The purpose of a guardian ad litem is to make decisions about the pending litigation for the ward, while the role of an attorney for the ward is to advocate for her wishes.

Most troubling to the Court was the judge’s in-home interview of Ms. Milstein. Ms. Milstein was not then represented by an attorney, and the interview itself was the basis for the judge’s ultimate decision to appoint a guardian and conservator. As a result of these errors, the Court of Appeals reversed all orders entered by the judge after Ms. Milstein’s lawyer was removed and replaced with a guardian ad litem.

Arizona law would probably have avoided the particular problems encountered in Ms. Milstein’s case. In Arizona, an attorney is always appointed to represent the wishes of a proposed ward; Arizona ended the practice of appointing guardians ad litem several years ago. Otherwise, Arizona law is similar to Colorado’s.

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