Court: “Massive Curtailment of Liberty” in Guardianship Cases

APRIL 21, 2008  VOLUME 15, NUMBER 43

We apologize. We like to think that we bring you the most interesting, useful and thought-provoking elder law cases, news stories and trends each week. Somehow we completely missed a great case last year. With thanks to our friend Prof. Rebecca Morgan for calling it to our attention, we will now attempt to remedy the oversight.

The actual holding of the Oklahoma Supreme Court in Matter of the Guardianship of Holly (June 26, 2007) may not be that powerful, but the language is. The issue was fairly simple: Danny Holly, a 58-year-old head-injured man whose daughter had been appointed as his limited guardian, wanted to hire his own attorney. He already had a firm representing him, and in fact he had chosen them four years earlier. But now he wanted to change lawyers.

The problem was that Mr. Holly’s guardianship (of his estate — what in Arizona would be called a conservatorship) was worth several million dollars, and everyone seems to have been concerned that he not be allowed to interrupt its administration by changing attorneys. They also expressed concern that he might be subject to undue influence by his new lawyers or others. His daughter and her lawyers agreed.

Mr. Holly’s judge scheduled a hearing on his request for new counsel. At that hearing the lawyers all argued about what should happen, but neither Mr. Holly nor anyone else gave sworn testimony. At one point the Judge said “I see no reason to swear in all of the attorneys. You are all officers of the Court.” Then he ruled that Mr. Holly could not change lawyers.

The Oklahoma Supreme Court eloquently and forcefully disagreed. The statements of counsel did not amount to evidence, ruled the Justices. “Unsworn, in-court statements by attorneys acting as advocates are not evidence,” the Justices noted.

Oklahoma law gives a ward the power to select his or her own attorney. Failure to allow Mr. Holly that right was reversible error, according to the state’s high court. Could that lead, as the guardian and the existing attorneys claimed, to a messy court proceeding? Perhaps, but “messiness has never been a valid reason for dispensing with one’s fundamental rights,” wrote the Justices. “Indeed, it is often a hallmark of the assertion of those rights.”

The Oklahoma court places its judicial finger squarely on the issue. Citing what it called the “massive curtailment of liberty” inherent in guardianship proceedings, the court opined that even after the appointment of a guardian “the proceedings must continue to be conducted with the utmost care to ensure that the ward subject to that curtailment receives due process.”

We feel better now, having shared this powerful appellate decision with you, our readers. We hope you forgive us the delay in getting it to you, and that you appreciate it as much as we do. We even hope many of our readers will have an opportunity to cite its language one day in a guardianship or conservatorship proceeding.

Would the same result (perhaps even the same strong language) obtain in Arizona proceedings? Likely. Arizona law is not quite as explicit about the right to select counsel, but in practice guardianship judges — and especially appellate judges — should be expected to fiercely protect the ward’s right to select counsel. If, on the other hand, there is actual evidence of undue influence, improper self-dealing or conflicts of interest, or other strong reasons to overcome the presumption in favor of the ward’s ability to select his or her own attorney, the result in individual cases might be different. Participants should start, however, with the assumption that the ward’s selection of his or her own attorney will be given effect.

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