Posts Tagged ‘guardianship of minor’

Lessons From a Day in Probate Court

JULY 7, 2014 VOLUME 21 NUMBER 24

One day last week I found myself sitting in probate court, watching other cases get resolved while waiting for the Judge to get to my own cases. The matters I was listening to seemed to me to be instructive, and give me a chance to share some observations from the perspective of a veteran probate court participant.

In the almost forty years I’ve been practicing in probate court, some things have changed quite a bit. Others have not. One that has changed dramatically is the now-common practice of probate court litigants doing things themselves, without hiring a lawyer. That was almost unheard of in the 1970s, but is now commonplace. More than half of the cases I watched did not have a lawyer involved.

On top of that trend, Arizona has engaged in a decade-long experiment in certifying non-lawyers to prepare legal documents. The Arizona Certified Legal Document Preparer Program has been run by the Supreme Court since 2003, and there are more than 500 Certified Legal Document Preparers across the state. They have undergone a background check and passed a test — and they can prepare pleadings for probate, divorce and other actions, as well as wills (and even trusts). The key is that they are not supposed to practice law — they can help you fill out forms, but not be your lawyer. Other states (notably Washington) are following or considering a similar path.

Everyone knows that lawyers are expensive, that we complicate matters unnecessarily, that we are slow and unresponsive. Legal document preparers should alleviate those problems, right? That’s not exactly what I saw in my day in probate court. In two cases I think document preparers failed to serve their clients well. In a third, with no lawyer or document preparer involved, a little help would have made the litigants’ lives easier, I’m pretty sure.

Exhibit One: a simple probate (I’ve learned that “simple” is a dangerous word in this context, but let’s keep using it). It involved a decedent who left five children, a will and a house — and not much else. One son and a son-in-law were named as personal representatives in his will, and his son-in-law (as he explained to the court while I listened) took responsibility for getting the probate proceedings going. He contacted a document preparer to get him started.

The document preparer required a $1,200 fee up front, and promised to have the paperwork ready shortly. After months of trying to get back in touch with the document preparer, though, the son-in-law finally figured out that he was out of business — he had been charged with a felony (apparently unrelated to his business) and wasn’t going to be doing any more quasi-legal work for others. The new problem: the original will was somewhere in the document preparer’s files, and he was in prison.

Son-in-law explained that he had gone to a new document preparer, who had prepared a petition for probate of a copy of the now-missing will. That had cost another $650 up front, and required that the son and son-in-law attend a probate court hearing to explain why the original will was missing. The result: about $2,000 in initial costs (it wasn’t clear if more fees will be incurred), a wait of more than six months to get a simple probate started, and a confusing and frightening hour before a friendly but stern probate judge.

What would have happened if the son-in-law had visited a lawyer instead? It’s hard to say with certainty, but a best guess from the information revealed in court: the total cost would probably have been about $2,500-3,000 plus filing fees, the son and son-in-law would have had authority to sell the house in no more than five days, the lawyer probably would have waited to be paid from proceeds from sale of the house (so no one would have to write up-front checks), and the whole thing would almost certainly have been over in about four months. And that doesn’t consider the possibility that there might have been a summary proceeding available under Arizona law which would have saved a few dollars and several months of time. Oh, and no one would ever have had to appear in court, nervously or otherwise. Oh, and the son and son-in-law would have had the correct forms filled out, and wouldn’t have had to visit the County Bar Association office to get one more form the document preparer missed, consuming another hour of their day and causing more confusion and consternation.

You might think the problem was really just bad luck, that this hapless fellow chose his document preparer badly. After all, few document preparers end up in prison, and there’s nothing that keeps a given lawyer from going bad, either. True enough, though (a) most lawyers practice in groups, so if one lawyer in a firm drops out of sight there’s likely to be someone else to take responsibility, and (b) the document preparers do seem to have a high rate of discipline, with about 50 having their licenses suspended or revoked in the decade since creation of the listing. That looks like about a 10% rate of attrition, which seems higher than for lawyers.

Exhibit Two: In another case involving a document preparer but no lawyer, two women were involved in the life of a 14-year-old girl. The girl’s mother had gone to prison some years ago, and a family friend had adopted the 14-year-old and her four brothers and sisters. Now the 14-year-old had decided she wanted to live with her maternal grandmother, and so had just moved in. Grandmother had consulted a document preparer, and filed an emergency guardianship petition without giving notice to the adoptive mother. Last week’s hearing was the permanent guardianship proceeding, seeking to turn that emergency guardianship into a full guardianship.

The document preparer helpfully came to court with the grandmother, though of course he could not speak for her or even be acknowledged in the probate proceeding. He helped her get her documents together and prompted her about what to tell the Judge. The adoptive mother was also there, telling the Judge that she had no objection to the change in guardianship — she just wanted to make sure that everyone realized that she would no longer be responsible for the girl’s medical bills. The problem with that position: she is still responsible for her daughter’s medical bills — and there was no one available to explain that nuance to her (and the Judge, in his eagerness to get through a complicated and mildly contentious proceeding, didn’t help by reassuring her she was completely off the hook).

Would a lawyer have been more expensive? Almost certainly. Would the 14-year-old have been better served by having someone able to actually give legal advice in this complicated family situation? I’m pretty sure. Would the proceeding have been less stressful, less contentious and more suitable for the 14-year-old (who sat through the court proceeding, watching the tension and drama)? Darn straight.

Exhibit Three: a grandmother was seeking guardianship over her infant grandson. Her daughter lived with her, but had no job and no insurance; grandmother was just trying to get the baby on her own insurance plan. She did the paperwork herself, with no lawyer or document preparer. When she gave notice to the baby’s father, he showed up at the hearing and started talking about his pending petition to get custody, his desire to develop a relationship with the baby, and his lingering uncertainty about paternity. Grandmother got temporary guardianship, but the whole proceeding took a stressful hour and involved plenty of assertions and suspicion.

If grandmother had gotten the advice of a competent lawyer, she might have learned that it’s actually not that hard to get medical insurance for an infant, that she could have worked something out in writing with the putative father (and accelerated the process of figuring out whether he really is the father), and that her guardianship would be of little value (at least in Arizona) if the father’s status is confirmed. Maybe she would not have thought the lawyer’s advice was worth the money.

It was an interesting day. I came away with heart-felt sympathy for litigants who are frightened and confused by a, well, frightening and confusing system. I also appreciate the work of judges who have to explain legal principles to unrepresented litigants (without practicing law, of course) and try to help them navigate the system — all under the watchful eyes of other litigants and (sometimes) their lawyers, waiting for their own cases to be called. Finally, I remain convinced that lawyers have an important place in the legal system, and that even when we are under-appreciated we help people far more than they may be willing to concede.

Probate Judge Sets Visitation Schedule in Minor Guardianship

DECEMBER 5, 2011 VOLUME 18 NUMBER 41
Most of the guardianship issues we deal with at Fleming & Curti, PLC, involve adults who have limited capacity or special needs. Sometimes, though, the subjects of a guardianship proceeding are minors; that can bring unique issues to the process.

There are a few legal principles that govern guardianship of minors:

  1. Minors are by definition “incompetent” under the law. In other words, they can not enter into binding contracts, they can not make enforceable decisions about their own living arrangements and health care (though “emancipated” minors may be different, and special exceptions may apply to the broad principle laid out here).
  2. Parents are the “natural guardians” of their minor children. That means they do not need court involvement to take responsibility for and control of their children’s care.
  3. Disputes between parents (usually, but not always, after they are divorced) about upbringing, care, education and living arrangements can be resolved in court — but the court involved is usually the domestic relations (sometimes called divorce or family) court.
  4. When parents are unfit, the decisions about placement, care, education and visitation are likely to be handled by a different branch of court, usually called juvenile court.
  5. Guardianship of minors is not uncommon, but in Arizona (as in most states) it is only appropriate when there is no parent available to exercise parental control. Of the three types court proceedings dealing with minors (juvenile, domestic and guardianship), the guardianship process is the least-used and usually the least-important.

Every generalization has its limitations, of course (presumably including this one, but that’s a philosophical issue for another day). Guardianship proceedings can and do exist for minors, and significant legal and family issues can and do get resolved in the guardianship context. Consider the case of the Smith/Lowrance/Wallace family in Arkansas.

In 2005 Timothy Wallace shot and killed his wife Brandy and a friend. Although he fled the United States after being released on bail, he has been returned, tried, and sentenced to two life terms. The death of Brandy Wallace and the incarceration of her husband meant that the couple’s three minor children, identified in court papers as “ZW,” “MW” and “CW,” had no parents available to raise them.

Three family members stepped forward to assert their priorities. Brandy Wallace’s mother (Janet Smith) and brother (Brian Lowrance, along with his wife Anna Lowrance), and a half-sister each argued that they should be appointed guardian for the three children. The court initially appointed Ms. Smith and the Lowrances together; after a later agreement and hearing, the Lowrances were appointed as permanent guardians and Ms. Smith was given a right to reasonable visitation with her grandchildren.

For several years the parties worked out a visitation schedule without too much conflict. In early 2010, though, Mr. and Mrs. Lowrance decided to limit Ms. Smith’s visitation; they required that all her visits with her grandchildren had to be supervised by one of them, and they cut off any overnight visits. Ms. Smith asked the probate judge (in Arkansas, as in Arizona, minor guardianships are handled in the probate court) to order the Lowrances to return to the earlier and more generous visitation schedule.

After a hearing the probate judge scolded both parties. He chastised the Lowrances for modifying the visitation arrangements unilaterally, and told Ms. Smith that she would have to find transportation to visit her grandchildren or give up visitation. Then he ordered a specific visitation schedule, similar to the kind that divorced couples sometimes see when the courts attempt to regulate the behavior of parents who can not work out visitation on their own initiative.

Mr. and Mrs. Lowrance appealed the imposition of a specific visitation schedule. They argued that they had done nothing wrong, and that they had just been protecting the children from a dangerous situation. They pointed out that Ms. Smith had allowed two of the children, then aged eleven and seven, to operate a “chainsaw.” While Ms. Smith acknowledged that she had allowed the two to operate a battery-operated saw, she agreed not to permit them to use any power tools in the future, and the probate judge had entered an order to that effect.

The Arkansas Court of Appeals agreed with the probate judge that, given the disagreements and the parties’ inability to work out their differences, a specific visitation schedule was in order. Although the relationship of Ms. Smith to the children is not the same as a parental relationship, the appellate judges ruled that the goal in a guardianship action should be the same as in domestic relations proceedings: serving the best interests of the minor children. Given the history of disagreement and litigation, the probate judge’s order “achieved the best interests of the children by fostering continued relationships, by eliminating continued litigation, and by crafting visits to fit with the children’s busy lives.” Lowrance v. Smith, 2011 Ark. App. 725 (November 30, 2011).

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