Posts Tagged ‘guardian ad litem’

Transfer of Guardianship to New State Should Be Easy

DECEMBER 9, 2013 VOLUME 20 NUMBER 46

We have written before about transferring a guardianship or conservatorship to Arizona, or out of Arizona, when the subject of the proceeding moves to another state. In fact, Arizona has joined a number of other states (that number, incidentally, currently stands at 37 states, plus the District of Columbia and Puerto Rico) in adopting something called the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act — the UAGPPJA. A mouthful of a title, but a simple goal: it should be easy and inexpensive to move your Arizona guardianship to Arkansas, or to Alaska, if you and your ward move to one of those states.

One key element of the UAGPPJA’s efficiency goal involves each state’s courts giving up a little tiny slice of control. Guardianship and conservatorship proceedings are often tightly controlled by local judges, and for good reason. But the logic of the UAGPPJA says that when the local judge in another state has decided whether a guardian or conservator is needed, and who should be appointed, the local judge in the new jurisdiction should be able to take that determination at face value. That means no expensive proceeding to evaluate the proposed guardian and conservator, no additional imposition of costly proceedings or even appointment of investigators, medical examiners and attorneys — unless there is good reason to suspect that something is amiss.

That’s the theory, but the devil, as usual, is in the details. A recent Alabama case may be the first appellate court decision to address how the UAGPPJA should work, and that state’s Supreme Court comes down squarely on the side of efficiency and ease of administration.

Roberta Smith (not her real name) filed a guardianship and conservatorship proceeding regarding her mother Susan in 2010. Both Roberta and Susan lived in Kentucky at the time, and so she appropriately filed her petition in Kentucky courts. After notice was given and a hearing held pursuant to Kentucky’s normal appointment process, Roberta was appointed as her mother’s guardian and conservator.

Roberta then moved to Alabama, and took her mother with her. She wanted to transfer the guardianship to their new state, and it should have been easy — both states had adopted the UAGPPJA. The process requires several steps, but it is mostly clerical in nature. First Roberta had to get the Kentucky court’s permission to initiate the transfer, then get the Alabama court’s permission to make the transfer, then go back to Kentucky to show that the Alabama proceeding was underway, then once more back to the Alabama courts to accept final transfer. The UAGPPJA intends that the result would then be that Alabama had jurisdiction over the guardianship and conservatorship, and Kentucky could close its file on the matter.

But the Alabama probate judge had a different idea. He wanted to make sure Roberta was a suitable guardian and conservator, and that she was making decisions properly. So he appointed a guardian ad litem (a GAL, in lawyer lingo — which is not a comment on the appointee’s gender) to investigate and to represent Susan’s interests in the transfer proceeding. Months later the GAL reported that, while Roberta hadn’t done anything wrong, she thought the public guardian would be a better choice to make decisions for Susan. The probate judge agreed and appointed a new guardian and conservator.

Roberta appealed, arguing that the UAGPPJA was supposed to allow transfer of proceedings, not relitigation of issues already decided. Meanwhile, as an aside, the public guardian recommended that the GAL could be appointed as guardian for Susan, and the probate court went along — turning Susan’s lawyer into her decision-maker for health care and placement decisions, and raising more questions about the Alabama proceedings.

The Alabama Supreme Court looked over this record, reversed the probate judge and sent the entire matter back for entry of an order transferring the Kentucky proceedings to Alabama. The UAGPPJA does not permit the receiving court (Alabama, in this case) to make a new determination about who ought to be guardian and conservator, but only to transfer the existing guardianship and conservatorship. Of course, once the transfer is completed the new court has jurisdiction, and could review the actions of the guardian and conservator, direct her to handle things differently and even remove her and appoint a new person — but that would be a separate proceeding. Sears v. Hampton, November 22, 2013.

The Alabama case, though it deals with an issue near and dear to our lawyers’ hearts, will probably not have a large impact on guardianship and conservatorship across the country. But it does reflect a change in the way the world works. Twenty years ago it was relatively rare to see a guardian or conservator move — with the ward — to a new state, and the law was unsettled about how to handle such a switch. Most of the time the guardian/conservator would be required to file a new petition in the new state, incur significant legal expenses and hope to get appointed. Once appointed, they could go back to the original state, show the new state’s appointment, and ask to have the first state’s file closed.

But each state probate judge might have a different idea about who should act, what they should do, and what were reasonable decisions. There was the regular concern that the two courts might enter conflicting orders, or that the first state’s judge might object to the second state proceeding even being initiated, or that the second state’s judge might refuse to act while the first state still had jurisdiction. Our society grows more mobile every year, and these problems become more complicated. The UAGPPJA was intended to help simplify this process, and now it has — at least in Alabama. We would like to think that it will also simplify things in Arizona, Arkansas, Alaska and all the states that don’t even start with “A”.

For extra credit: is this the first appellate decision to interpret the UAGPPJA? It could be. In Hetman v. Schwade, a concurring justice in one of the other “A” states (Arkansas) strongly suggested that his state’s legislature should adopt the UAGPPJA — and they took him up on the suggestion two years later. The Tennessee Court of Appeals, in a July 13, 2013, decision (In re Proposed Conservatorship of Stratton), makes a passing reference to the UAGPPJA — but only to note that the appellant failed to preserve any argument she might have under the Act. So we think this Alabama case is in fact the first appellate interpretation of the Act.

Appointment of “Next Friend” In Divorce Reversed on Appeal

DECEMBER 8, 2003 VOLUME 11, NUMBER 23

It is a common problem facing lawyers and litigants. What can be done if one of the parties to a lawsuit is a minor, or an incapacitated adult? Who makes decisions about the litigation if one party lacks legal capacity to handle their own financial and personal decisions?

In many courts, the civil litigation rules permit appointment of a “guardian ad litem,” an “attorney ad litem” or a “next friend” to guide lawyers and the court itself on how to proceed. One problem with those rules, however, is that they seldom make clear how such a person is to be appointed, who would qualify or what authority they might have. A recent case in Texas illustrates the confusion.

Alejandro Saldarriaga filed for divorce from his wife Debra Ann in late 1999. Both spouses had lawyers, and the litigation proceeded for three years without resolution of child custody, child support or property division issues. Finally Debra Ann Saldarriaga’s attorney, Lin Zintsmaster, decided her client was mentally incompetent to complete the divorce.

Ms. Zintsmaster filed a motion asking for appointment of someone to make decisions about how to proceed with the divorce litigation. The judge appointed local attorney Jerry Jones to be Ms. Saldarriaga’s “next friend,” and to make decisions about how the divorce should be completed.

Mr. Jones, in turn, filed a petition for appointment as Ms. Saldarriaga’s guardian, and yet another lawyer was appointed to represent her in that proceeding. Meanwhile Mr. Jones went ahead and negotiated a resolution of the remaining child custody, child support and financial decisions in the divorce proceeding.

Ms. Saldarriaga’s doctor wrote that she was not incapacitated, and the guardianship proceeding was dismissed. Meanwhile, however, the divorce court accepted the settlement negotiated by her “next friend” Jerry Jones, and the divorce was finalized. Ms. Saldarriaga appealed, arguing that the court never had authority to appoint someone to take over handling her case.

The Texas Court of Appeals in Austin agreed, and set aside the negotiated settlement. The court noted that there is a mechanism for appointment of a guardian, and the procedure must be followed in order to protect the rights of people who are alleged to be incapacitated. Since the powers of a “next friend” look so much like the authority given to a guardian, said the judges, the procedures must be similar. The divorce court simply did not have authority to name someone to take over Ms. Saldarriaga’s case. Saldarriaga v. Saldarriaga, November 13, 2003.

Although Mr. Jones testified in the divorce proceeding about the difference between the titles “guardian ad litem,” “attorney ad litem” and “next friend,” there is no clear consensus among practitioners about the distinctions. A “guardian ad litem” is someone, not necessarily an attorney, appointed to be an incapacitated person’s “guardian” for the limited purpose of a pending legal proceeding. Most practitioners think that a “guardian ad litem” should counsel the attorney as to what would be in the client’s best interests, although many would argue that the proper role is to help figure out what the incapacitated client wants to accomplish, and whether those goals are reasonable. An “attorney ad litem,” a term not used in most jurisdictions, fulfills a similar function but is necessarily an attorney; the role implies that the “attorney ad litem” will argue for what is in the patient’s legal best interest, not just his or her personal best interest.

Finally, the “next friend”–the choice used by the divorce judge in the Saldarriaga case–is the least well-defined of all. Many states permit a lawsuit to be brought by a “next friend” (Arizona is one), but the term is usually used for litigation filed on behalf of minor children by their parents. As Debra Ann Saldarriaga’s case makes clear, neither it nor either of the other designations should be used as a substitute for a real court determination of the ability of a client to make his or her own legal decisions.

Juvenile Court Appointment of Guardian Ad Litem Reversed

DECEMBER 23, 2002 VOLUME 10, NUMBER 25

When someone appearing in a court proceeding is unable to make decisions for himself or herself, the court may sometimes appoint a guardian ad litem. Lawyers usually shorten the appointee’s title to GAL. The need for a GAL and the GAL’s proper role have been topics of controversy in a number of cases.

Most jurisdictions draw a clear distinction between a GAL (who may or may not be a lawyer, depending on the court’s wishes and local laws and practice) and an attorney for the ward, minor or disabled person. Generally, the GAL’s role is to make decisions for the person. An attorney’s role, on the other hand, would be to represent the client, to counsel him or her, and to assist in producing witnesses and evidence if he or she wishes to take a particular position.

GALs are most often appointed in guardianship and conservatorship proceedings. In civil litigation involving a minor or disabled adult, or even in divorce proceedings where one spouse is mentally disabled, a GAL may be appointed to make decisions about the course of the case.

Because courts tend to be paternalistic toward children and the mentally disabled, the appointment of a GAL may be almost routine in many types of cases. As a recent California case pointed out, however, a judge needs to follow proper procedures even when taking steps to protect a litigant.

Kim S. is the grandmother of four-year-old Joann E. (the court does not provide last names in this juvenile proceeding) and her guardian. When the state decided that Kim’s mental illness made it impossible for her to properly raise Joann, a juvenile proceeding was initiated to remove Joann.

Because of Kim’s obvious mental illness, the juvenile judge decided to appoint a GAL to make decisions for her in connection with the juvenile proceedings. The appointment was made without a hearing, any testimony or an opportunity for Kim to be heard as to whether she needed a GAL.

After a different judge removed Joann from Kim’s care Kim appealed. One of her arguments was that the judge had no right to appoint a GAL without first holding a hearing and giving her a chance to object.

The California Court of Appeal agreed. Because it appeared that the judge simply decided, based on the written reports, that someone other than Kim should be in charge of her case, Kim’s due process rights were violated. Since Kim’s rights were abridged at the outset, the entire process thereafter was suspect, and the trial court must restart the juvenile proceedings. In re Joann E., December 16, 2002.

Guardian Ad Litem Appointed For Incapacitated Litigant

MAY 13, 2002 VOLUME 9, NUMBER 46

Ralph Blakely, Jr., signed himself in to a mental health treatment facility for the first time in 1972. Despite treatment he received from time to time over the next quarter century, he continued to suffer from delusions, hallucinations and impaired memory.

Mr. Blakely married in 1973. He and his wife Yolanda owned various businesses over the years, including a dairy farm, an orchard, and other properties. He apparently continued to live a tumultuous life; by 1995 the couple had been involved in over 60 lawsuits. Partly to protect their assets from possible creditors the Blakelys created a trust to hold title to most of their property.

In 1995 Mr. Blakely’s legal troubles began to escalate. First his wife filed for a dissolution of their marriage. A year later the trustee of the trust which the couple had created asked the court to compel Mrs. Blakely to account for her use of trust assets; she argued that Mr. Blakely, his father and son were liable for any shortages.

Mr. Blakely elected to represent himself in the trust and dissolution actions. About three weeks before the trust trial, however, he was arrested for kidnapping his wife and son, and he went to jail pending a trial on those charges.

The attorneys appointed to represent Mr. Blakely in his criminal trial asked the court in the trust and dissolution actions to appoint a guardian ad litem (usually referred to as a “GAL”) in those proceedings. The GAL would be able, they argued, to determine what would be in Mr. Blakely’s best interests, and to manage the litigation without exposing him to further criminal problems. Although the court initially denied the request a local attorney was ultimately appointed to serve as guardian ad litem.

The trust case was the first of Mr. Blakely’s three legal problems to be resolved. His GAL helped negotiate a resolution of the claims and counterclaims, and the court approved the settlement.

Next Mr. Blakely faced the criminal charges arising from his having kidnapped his wife and son. A jury heard that matter and decided that his mental condition was not so serious as to prevent him from participating in own trial. Armed with that finding Mr. Blakely asked that his GAL be dismissed in the trust and dissolution matters so that he could once again represent himself. Those requests were denied and he appealed.

The Washington Court of Appeals upheld the lower court’s determination that Mr. Blakely needed a GAL to make decisions in his best interests. Court rules allow for appointment of a GAL when a litigant is unable to understand the significance of legal proceedings. A full hearing on the request was not required since he did not object until after the appointment. Marriage of Blakely and Blakely, April 25, 2002.

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