Conservator Properly Appointed for Missing Homeless Man


Late in 2012, Mark West was driving a car that struck and injured Don Barnes (both names have been changed) in the Phoenix area. Barnes hired an attorney to sue West, but because the attorney was unsure of Barnes’ ability to understand the proceedings, he sought appointment of a “guardian ad litem to represent Barnes’ interests in the lawsuit.

The guardian ad litem had a hard time staying in touch with Barnes, and eventually decided it was necessary to seek court appointment of a conservator for Barnes’ estate — which consisted solely of the personal injury lawsuit. Arizona law provides for appointment of a conservator for someone who has disappeared, and so a proceeding was initiated.

West (the driver), through his attorneys, objected to the conservatorship. He noted that Barnes was mentally ill and homeless, that he had claimed to be from Montana, and that he appeared to have returned to that state — or somewhere else. Barnes had criminal citations in six different states over the years, and West’s attorneys insisted that he had no significant connection to Arizona.

The probate court disagreed, and appointed a conservator for Barnes. West appealed that order (technically, he filed what the courts call a “special action,” but that’s a distinction that only lawyers find interesting).

The Arizona Court of Appeals agreed to address the question, but upheld the appointment of a conservator for Barnes. The statute permits appointment of a conservator for someone who has “disappeared,” ruled the appellate judges, and the plain meaning of “disappear” includes a situation when someone used to be in Arizona and now can’t be found.

Conservatorship proceedings are supposed to be initiated in the subject’s home state or, if they do not have a home state, in a state with significant connections to the person. The facts that Barnes was in Arizona when he was injured, and that he has a lawsuit pending in the state now, amount to significant connections with Arizona. Furthermore, he hired an attorney in Arizona before he disappeared, and he has a sister living in the state.

The Court of Appeals ruling clarifies that a conservatorship (of the estate) can be initiated in Arizona even if the subject has disappeared — in fact, the disappearance is the basis for a conservatorship in a case like this one. Woestman v. Hon. Russell, July 28, 2015. Could the same logic allow appointment of a guardian for a missing person? Probably not, since “disappearance” is not itself a ground for appointment of a guardian (of the person).

There are also procedural problems with both conservatorship and guardianship over someone who can not be located — though the problems would be much more challenging in the case of a guardianship. The process requires appointment of a court investigator, who is supposed to interview the subject of the proceedings and visit the place where they would reside.

There is a potential exception to that requirement for conservatorships based on disappearance (or, interestingly, “detention by a foreign power”), but conventional practice still includes appointment of an investigator. Similarly, a medical evaluation is customarily required (though the court may skip the medical review). Obviously, it may be impossible for either an investigator or a medical expert to evaluate a missing person.

One other legal point arose in West’s challenge of the conservatorship: Barnes’ attorney argued that he had no standing to even participate in the probate proceeding. Both the trial judge and the appellate court agreed, however, that West was an “interested person” because he had a potential claim for court costs if Barnes’ lawsuit ultimately failed. That permitted him to raise procedural objections to the conservatorship proceeding.

How often are conservatorships required for missing persons (as opposed to people who have become incapable of handling their affairs because of mental health issues, or dementia)? Rarely, but still more commonly than you might think. In addition to homeless people who may be difficult to trace (and who may have financial assets), there are also crime victims who may have business interests to manage while their whereabouts are unknown. Not infrequently, of course, the “missing” person may reappear even as the proceedings are underway.

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  1. Mark Rubin

     /  August 10, 2015

    The standing argument seems like a real stretch. West–most likely, his insurer– wanted no conservator so he could get the case dismissed.

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