JULY 12, 2010 VOLUME 17, NUMBER 22
Among the less-controversial steps taken by the Arizona Legislature in 2010 was the adoption of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which is usually referred to by its unpronounceable acronym UAGPPJA. The new law, which becomes effective on July 29, should make it easier for families to handle interstate guardianship and conservatorship issues. At the same time it should make it harder for warring families to move an ailing or demented family member across state lines for personal advantage.
Problems with interstate application of guardianship and conservatorship laws have been all too common. Imagine a typical scenario: father and stepmother, married for 25 years, live in Pennsylvania. Three children from father’s first marriage live in Florida, Arizona and Illinois. After stepmother checks father into a Pennsylvania adult care home, the children meet in Pennsylvania and decide they are better equipped to make decisions about their father’s care. Without telling their stepmother of their intentions they check father out of his adult care home, put him on an airplane, fly to Tucson and check him in to a nursing home here. Then they file a guardianship and conservatorship action in Arizona, giving notice to his wife in Pennsylvania.
Under existing law such a proceeding would be permissible, and could result in the Arizona courts making decisions about not only the Pennsylvania man’s living arrangements and medical care, but also over his (and his wife’s) Pennsylvania property. The cost and trouble of traveling to Arizona, hiring a local attorney and objecting to the Arizona court proceedings might well deter his wife from protecting herself or asserting her views on the proper care for her husband.
After the UAGPPJA goes into effect, however, such interstate moves to secure legal advantage should become ineffective. The Arizona courts will be instructed to defer to the courts of the home state of any proposed ward.
There are other frequent — and much more benign — interstate problems in guardianship and conservatorship proceedings that are addressed by the UAGPPJA, too. One arises when the subject of an Arizona guardianship legitimately moves out of state. Imagine, for example, that a working couple have become guardian for their 22-year-old son who is developmentally disabled. Now they want to move to another state, and they will take their son with them. Will their Arizona guardianship be valid in the new state? Will they have to initiate an entirely new proceeding in the new state? If they do not, will they have to report to the Arizona courts for the rest of their son’s life — even though Arizona no longer has any direct involvement in his life?
If the new state has also adopted the UAGPPJA (and so far 19 other states and the District of Columbia have) the process of transferring a guardianship or conservatorship is vastly simplified. A filing needs to be made with the Arizona court, then with the courts of the new state. Once both courts have agreed that the guardianship can be transferred, the Arizona proceeding is terminated and the new state takes over. The process is much simpler than a second proceeding in the new state, and it ensures approval from the Arizona courts before any action is taken. The same process can work in reverse for people moving into Arizona.
One other interstate problem arises when, for example, an Arizona conservatorship involves property in another state. Under the existing patchwork of laws, each state is different — and many of them require an entirely new conservatorship (a “protective proceeding” in the language of the interstate jurisdiction law) with court-appointed attorneys, bond premiums and separate accountings filed in the state with the property. The new law makes the process much simpler: once the Arizona conservator has filed appropriate documents with the courts of the other state, he or she can proceed as if appointed in that state. No separate court proceedings required, no additional legal fees incurred, and no potential conflicts between two courts overseeing the same conservatorship.
{Ed. Note: this week’s Elder Law Issues was written for us by our friend, and nationally-known elder law authority, Prof. Rebecca C. Morgan. Prof. Morgan holds the Boston Asset Management Chair in Elder Law at the Stetson University College of Law, and she is the Director of Stetson’s Center for Excellence in Elder Law.]
The ethical rules for attorneys (the Rules of Professional Conduct) impose a number of duties upon lawyers in their dealings with clients. Sometimes the rules require an attorney to take protective action on behalf of a client who has diminished capacity, even when the client disagrees with the attorney doing so.
Janet Clark suffered a traumatic brain injury as a result of a serious car accident. She was subsequently determined to be incapacitated and a North Carolina probate judge appointed a guardian of the person and property for her. A little over eighteen months after her accident her husband petitioned to end her guardianship, arguing that she had been returned to competence.
In the meantime a personal injury case filed on her behalf settled for $4,000,000, and after the payment costs and fees the balance was to be paid to the trustee of a special needs trust to be established by the attorney’s firm. The attorney had earlier created a pooled special needs trust, and he sat on its Board of Directors. He used that trust for Ms. Clark’s settlement funds.
During the case the attorney had come to the conclusion that the husband was attempting to influence Ms. Clark while she was incompetent. The attorney concluded that the pooled SNT would be the best way to ensure that funds would be both protected and available for Ms. Clark’s future needs. Because of this concern, the attorney opposed the proceeding filed by Mr. Clark to terminate the guardianship, and he sought a new evaluation of Ms. Clark’s competency.
Ultimately Ms. Clark was restored to competency and motions were filed, included motions regarding attorney’s fees. The appellate court rejected the Clarks’ argument that it was wrong to award the fees, especially in light of the guardian’s and attorney’s opposition to efforts to end Ms. Clark’s guardianship. After reviewing state law the appellate court concluded that the attorney’s fees should be paid.
The appellate court noted that the facts supported the guardian’s concerns regarding efforts to end Ms. Clark’s guardianship. The trial judge had found that the attorney had a good faith belief that terminating Ms. Clark’s guardianship was not in her best interest and the attorney had a duty to “exercise his best judgment” which, according to the trial court, is exactly what he did.
The appellate court also upheld the trial court’s finding that there was no conflict of interest because the attorney had fully disclosed his relationship with the pooled trust. According to the court, the Clarks failed to prove that this relationship in any way adversely affected the attorney’s representation of Ms. Clark. In re Clark, February 2, 2010.
Washington State resident Shirley Crawford, then age 80, had a difficult problem to deal with. She had fallen in 2001 and was hospitalized. Her only child, Anne, was severely mentally disabled and lived in Ms. Crawford’s home. Ms. Crawford needed someone to help her with management of her financial affairs and care of her daughter.
Ms. Crawford turned to a long-time friend and distant relative, Judith Thompson. With the help of a lawyer Ms. Crawford signed a power of attorney form giving Ms. Thompson wide-ranging powers over her finances.
Within three months Ms. Thompson was trying to use the power of attorney to make gifts to herself. The broker where most of Ms. Crawford’s money was held refused to honor the power of attorney for that purpose, saying it did not include gift-making authority.
In the following year Ms. Thompson and her husband secured a new power of attorney from Ms. Crawford — this one specifically allowing them to make gifts to themselves. They sold her house and used more than $300,000 of the proceeds to pay off their own debts and to buy a $200,000 boat for their Alaska fishing charter business.
It took almost three more years before the state Adult Protective Services office and, ultimately, the Washington courts to begin to undo what the Thompsons had done. While investigations and court proceedings were pending, the Thompsons apparently thought it would be helpful to their cause if they had Ms. Crawford on videotape approving of the gifts they had made.
The videotape showed Mr. Thompson telling Ms. Crawford that he had compiled a series of statements from things she had told the Thompsons. The list included such items as “I wanted [the Thompsons] to have my house.” Ms. Crawford was shown nodding and agreeing with the statements as Mr. Thompson read them.
The Thompsons’ videotape never got introduced in the guardianship matter. It did, however, get used in court — in a criminal trial in which Mr. and Ms. Thompson were accused of tampering with a witness. At that trial Ms. Thompson testified that she and her husband had transferred Ms. Crawford’s assets to their name to protect her from thieves, and that the “investment” in their fishing charter business was safer than the stock market.
A jury found the Thompsons guilty of witness tampering, and the Washington Court of Appeals upheld their conviction. The appellate court ruled that the Thompsons had reason to believe that Ms. Crawford would be called as a witness in her own guardianship proceeding, and that they were trying to induce her to give false testimony. State v. Thompson, November 23, 2009.
As often happens in exploitation cases, the Thompsons insisted vehemently that they were following Ms. Crawford’s wishes, and that they intended to take care of her developmentally disabled daughter. The facts did not bear out that assertion, however — over the course of their involvement, virtually all of Ms. Crawford’s money went to the Thompsons, and none of it went to the care of Ms. Crawford’s daughter.
The Thompsons were also charged with (and convicted of) theft. That much makes an all-too-common story of exploitation of a vulnerable elderly woman. It is even common for exploiters to try to enlist their victims in an attempt to whitewash the evidence of misbehavior. What makes the Thompsons’ case stand out is their successful prosecution for what that attempt was: tampering with a prospective witness in a contested court proceeding.
Preparation of an estate plan is more than the individual documents. A good attorney considers the client’s circumstances and wishes, and analyzes the best course of action. The process requires the attorney and the client to communicate, and to work together.
Too often, however, problems arise after the attorney’s work is done. Clients are often pulled in different directions by family members, bankers, accountants, and other professionals. Television, radio, newspaper and magazine presentations aimed at mass audiences may confuse or mislead the client. Even if the client resists all of those voices, documents may get lost or inadvertently destroyed. What is a conscientious estate planner to do?
Many lawyers routinely hold on to original documents prepared for their clients. The best argument for doing so: it helps prevent accidental destruction or loss of the documents, and makes it harder for clients to make inadvertent changes.
Other lawyers do not like the practice. It takes considerable resources to manage a large collection of original documents. Holding on to originals also conveys the (false) impression that the children or other successors must return to the same lawyer later for administration of the estate.
A small minority of lawyers regularly prepare multiple originals of wills, trusts and powers of attorney. If one original document is in the lawyer’s office, at least it will not be misplaced by the client. This approach also helps reduce the concern that family must return to the same lawyer, since originals in the client’s possession can be used without the lawyer even knowing about the disability or death of the client.
Neither of these techniques does much to protect against the client becoming subject to undue — or unwise — influence. The scenario is common enough to be clichéd: the carefully considered estate plan prepared while the client is clearly competent is changed at the behest of a grasping relative or friend without the original lawyer ever being consulted or even advised.
One Illinois lawyer came up with an unusual way to protect against inadvertent or misguided changes to his clients’ estate plan. Attorney Lawrence Patterson included a provision in at least one married couple’s documents. It prohibited revocation or amendment of the estate plan without the attorney’s written consent.
Was Mr. Patterson’s approach effective? That depends entirely on how one defines “effective.” He has now been sued by his former clients AND is the subject of a pending ethics complaint through the Illinois Bar. Did he “overreach,” or was his concern for clients “admirable?”
We offer those two terms advisedly. They appear in two of the available documents responding to Mr. Patterson’s approach. Here is what has happened in the public record so far:
First, Mr. Patterson’s clients visited a new lawyer to modify their estate plan. The new lawyer wrote to Mr. Patterson, asking him to acknowledge that the clients had the right and power to do that. Mr. Patterson wrote back, telling the new lawyer that he would first need to meet with the clients to “determine whether the changes are consistent with the interests and protections embodied in the original plan.”
Rather than meet with Mr. Patterson, his clients filed a lawsuit seeking a declaration that Mr. Patterson could not control whether they amended their estate plan. The trial judge agreed, dismissing Mr. Patterson’s objections summarily and assessing legal fees and costs of $5,393.75 against him. Mr. Patterson appealed both determinations to the Illinois Court of Appeals.
Meanwhile someone (it may have been the clients, the opposing lawyer or even the judge in the trial case) notified the Illinois Attorney Registration and Disciplinary Commission of Mr. Patterson’s refusal to consent to the changes without first meeting with his (now) former clients. The Commission (which regulates lawyers practicing in Illinois) filed a two-count complaint against Mr. Patterson for what it saw as “overreaching.”
Interestingly, the first count in the ethics complaint dealt with an entirely unrelated matter, in which Mr. Patterson brought a guardianship petition against a client when she disagreed with his advice in a contested probate matter–a practice we have previously written about in another unrelated case out of Washington State. The ethics complaint against Mr. Patterson is still pending.
Then the Illinois Court of Appeals ruled on the lawsuit against Mr. Patterson. Its analysis indicated that his clients had given Mr. Patterson a fiduciary role over and above his standing as their attorney. They had made an irrevocable decision, according to the appellate court, to give him the power to oversee their estate planning changes in the future. Even though they subsequently fired him as their attorney, he remained as the arbiter of their future estate planning changes.
Far from criticizing him for his role, the Court of Appeals found his conduct to be “admirable, and consistent with the highest ideals of the bar.” The appellate court noted that the documents prepared by Mr. Patterson gave his clients the power to seek court approval of any change if they did not want to deal with him, and that his power was tempered by a duty to act as a fiduciary for his clients. “In light of the obvious expense to Patterson,” noted the appellate court with understatement, “we will leave it to other estate planners whether they wish to use this particular method of estate planning.” Dunn v. Patterson, November 18, 2009.
Note: we owe a considerable debt to the research work on Mr. Patterson carried out by Illinois estate planning attorney Joel Schoenmeyer. His excellent, entertaining and informative blog “Death and Taxes” has tackled the Patterson case, as well.
Being appointed as guardian for another person can be a daunting challenge. The responsibility is enormous, and most guardians get little or no training other than the “on-the-job” type. The stakes — a human life — are enormous.
What is the proper goal for a guardian? Is it to ensure the safety of the ward? To interfere in the life of the ward as little as possible? To protect the ward’s autonomy and give him or her wide latitude? To carry out the ward’s wishes as expressed before his or her incapacity? In a word, yes — even though all of those goals may conflict with one another. No easy task.
Although the courts are supposed to resolve the tension between these competing goals, in the real (legal) world that often does not happen. Instead, the legal dispute can sometimes devolve into a determination of whether the guardian’s decision is so demonstrably wrong, or so clearly motivated by the guardian’s own hopes and wishes, that the guardian should be removed altogether. Courts are not often good at training and guiding guardians.
Consider the recent Missouri Court of Appeals case of In re Estate of Posey v. Bergin (November 3, 2009), as it brings the conflict into clear relief. The ward in that case had been found to be incapacitated in 2003, based on his serious and long-term alcohol abuse. His daughter had been appointed as his guardian.
As guardian, the daughter decided that her father’s old drinking buddy was not a good influence. She also worried that his sister’s calls agitated him. She had placed her father in a residential setting and restricted his access to alcohol. She also ordered that no one could visit, or even telephone, without her approval, and she monitored his mail.
Her father objected that he should not be so restricted. He maintained that he was no longer incapacitated (he no longer had access to alcohol). He argued that he didn’t need a guardian at all, but that if he did someone else should be appointed.
The probate court disagreed with him, and left his daughter in place as his guardian. The state Court of Appeals upheld that decision. But neither decision was about whether the daughter was a good guardian, or whether she was handling her father’s placement, care and visiting rights appropriately. Instead, the case hinged on whether her behavior was so manifestly wrong that she should be removed as guardian. Both courts ruled that she should not.
In fact, the father had tried to remove his daughter as guardian in an earlier proceeding, as well. When the court denied his 2004 petition, his daughter apparently interpreted that to mean that all of her decisions had been approved by the judicial system.
It is easy for us, at this distance (geographic and emotional), to criticize the guardian’s decisions and the court’s framing of the legal question. Perhaps we could be more constructive by suggesting a few ideas, for the guardian in this case and for guardians generally:
The ward’s wishes, even though not necessarily in his own best interests, should be considered. That does not mean that he must be put in charge of his own decisions, but that his personal preferences should be part of the mix. His desire to maintain contact with his sister and with his long-time friends should be recognized, and efforts made to make the contacts constructive.
A child acting as guardian for his or her own parents is almost always torn by competing emotions. It is difficult to reverse the usual roles, and for a child to effectively become parent to his or her own parents. That reality should be confronted, and care taken not to let the role-reversal get in the way. Even a well-adusted guardian might benefit from counseling to look closely at the effects of the role reversal.
If it is truly necessary to restrict visits and access, it should be a restriction rather than a prohibition. Conversations with the other individuals might be one way to make sure they understand the importance of positive contacts and the need to avoid undermining the ward’s condition and/or recovery. If the guardian finds that he or she is unable to have a reasonable conversation with the other individual’s in the ward’s life, the response should be to look for a suitable intermediary rather than to eliminate or unduly restrict the contact.
Safety is important, as is recovery. So is the ward’s happiness and peace of mind. Striking a balance is challenging, but essential.
Once a proper balance is found, it will probably require constant adjustment.
Should the Missouri courts have terminated the guardianship, or removed the guardian? Probably not — and in any case the judges at both levels decided that was not the appropriate decision. That does not necessarily mean that the guardian was doing the best job possible, and it would be a mistake to read the Missouri case as supporting the wisdom of restricting a ward’s visitors and outside contacts. The real challenge for the guardian in that case will be to avoid reading the decision as endorsement of all that has transpired, and instead see it as validation of the authority — but not the necessity — of the guardian’s actions. The challenge for guardians everywhere is to balance the competing interests, desires, histories and circumstances in a most difficult job, and to be willing to adapt to new information and changing situations with humanity, grace and flexibility.
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.
Mark Glasser and Suzanne Glasser Matthews, brother and sister, have spent the last two years battling for physical and financial control over their mother, Lillian Glasser. The 86-year-old Mrs. Glasser, who at one point had an estimated net worth of $25 million, has been the subject of proceedings first in Texas and more recently in New Jersey, where a trial judge heard thirty-four days of testimony and argument last fall.
Nearly six months after the extended proceedings, New Jersey Judge Alexander Waugh has issued his ruling, appointing a guardian of the person and estate for Mrs. Glasser. Rather than appointing any of the family members who might have been candidates, Judge Waugh appointed New Jersey attorney Joseph Catanese as guardian of the person. Mr. Catanese had served as court-appointed counsel for Mrs. Glasser during the trial, and the judge indicated that her condition could worsen if yet another new party was injected into her life.
Judge Waugh also appointed a guardian of the estate (the equivalent of a conservator in Arizona and some other states), turning to the financial management firm Mrs. Glasser and her late husband had used before his death. Mrs. Matthews, her daughter, was ordered to return control of approximately $20 million she had transferred to a family limited partnership just before initiating guardianship proceedings in Texas (see the San Antonio Express-News report), and the judge made clear that at least some portion of the costs incurred by Mrs. Matthews to set up that entity would have to be reimbursed as well.
All of that is very interesting, and Judge Waugh’s written opinion reads like a fictional saga (for more detail and an excellent running commentary on the case, consider Texas Tech College of Law Prof. Gerry W. Beyer’s blog coverage of the case). What the Lillian Glasser case points out even more clearly, however, is a growing problem in guardianship matters—the conflicts that can arise between jurisdictions with the increased mobility of families, support systems, caregivers and assets.
Guardianship proceedings were initiated in Texas when Mrs. Matthews sought appointment as guardian of both her mother’s person and her estate. After Mrs. Matthews’ appointment as temporary guardian, another relative initiated the New Jersey case, arguing that Mrs. Glasser was a New Jersey resident and the question of her capacity—and management of her affairs—should be handled there.
In an earlier ruling Judge Waugh determined that his court should have primary jurisdiction over the guardianship. Luckily, the Texas judge assented, staying the proceedings until a hearing could be completed in New Jersey. Although neither state’s laws include explicit provisions permitting such an action, the two judges’ cooperation saved considerable expense and duplicative legal proceedings.
Arizona law also lacks a provision for resolution of interstate guardianship conflicts. In practice, such conflicts are handled on an ad hoc basis, considering the strength of the proposed ward’s ties to each of the jurisdictions, the location of principal witnesses, and other factors. Frequently the result is that the state where proceedings are first filed has priority, even though the stronger contacts are elsewhere.
The National Conference of Commissioners on Uniform State Laws (NCCUSL), which proposes uniform statutes for consideration by the states, has addressed this growing problem. A provision of the Uniform Guardianship and Protective Proceedings Act, proposed in 1997, would specifically permit the judge in one state to notify and consult with the judge in another state, and to decide whether to accept or decline jurisdiction based on the best interests of the proposed ward (see section 107(b) of the UGPPA).
Another growing problem involves movement of wards after appointment of a guardian or conservator. Under current law and practice, it may be necessary to initiate a whole new guardianship proceeding in the new state after a move, at considerable expense and duplicating much legal effort The proposed uniform law would also address that problem, permitting the final guardianship order of one state to simply be lodged with, and become an order of, the ward’s new state.
When the legal system takes over decision-making and care of an incapacitated adult, there is a struggle between competing goals. It is important to provide adequate protection and supervision, but it is also important to maintain the ward’s personal autonomy and self-determination. It is often difficult to decide how much latitude to give to an incapacitated ward. Even the court system charged with overseeing that balancing act can sometimes be too restrictive.
Sheri Rosengarten was the subject of a guardianship in Pennsylvania. Before the onset of her mental illness she had established a revocable living trust naming herself and her brother David as co-trustees. Unfortunately, her brother had mismanaged her trust assets after she became incapacitated, and so her personal and legal affairs were in some disarray.
The court appointed a non-family member, lawyer Susan B. Smith, to serve as Ms. Rosengarten’s guardian (of both her person and estate—what would be called a guardian and conservator in Arizona). Thereafter Ms. Smith began to manage Ms. Rosengarten’s personal and financial affairs, although assets in her living trust were being managed by her father as successor trustee.
Because Ms. Rosengarten was in an assisted living facility, her guardian decided it was time to sell her residence and add the proceeds to the assets under management. Ms. Rosengarten objected (as did her father), thinking that she might some day be improved enough to return to her home. In the meantime she thought it made sense to rent the house out—perhaps as a group home that could be tailor-made for her as her condition improved.
Although the court had appointed an attorney to represent Ms. Rosengarten in the guardianship proceeding, she wanted to choose a different attorney and argue against the sale of her home. The court, however, refused to hear from the lawyer she had hired, insisting that the attorney previously appointed could represent her interests. After a brief hearing the judge ordered that Ms. Rosengarten’s home should be sold, and the proceeds delivered to Ms. Smith rather than held in her living trust.
The Pennsylvania Superior Court (that state’s intermediate appellate court) reversed the trial judge’s holdings and remanded the case back to the trial court. Once she had raised the argument that she was no longer incapacitated, said the appellate judges, the first question to be addressed was whether a guardianship was still necessary. At that hearing Ms. Rosengarten should of course be allowed to choose her attorney unless it could be shown that she lacked capacity to even enter into a lawyer-client relationship, and her wishes should be respected to the fullest extent possible. Estate of Rosengarten, March 24, 2005.
Family members and caretakers are often confused by the difference between powers of attorney and guardianship. The difference is straightforward: powers of attorney can be signed by competent adults giving authority to someone else to act—including, but not necessarily limited, to those times when the signer may later become incapacitated. Guardianship and conservatorship, on the other hand, are court proceedings that may be initiated when a person no longer has capacity to sign documents such as a power of attorney.
A previously executed power of attorney should ordinarily avoid the need for instituting guardianship proceedings. For several reasons, avoiding court action will usually be desirable.
The high cost of guardianship and conservatorship actions makes the relatively inexpensive power of attorney look like an attractive alternative. When an individual signs a power of attorney, he or she also selects the individual who will act as agent; a guardianship proceeding leaves that choice up to the court. Once court proceedings are invoked, it will usually be necessary to file accounting and personal information with the court (and make it a public record) every year thereafter.
Despite the existence of a validly executed power of attorney, however, court proceedings sometimes are initiated. In a recent Florida case, for example, distant relatives of an elderly woman filed a guardianship petition; her husband and step-daughter already held a power of attorney. When the court denied their petition for guardianship, the relatives appealed.
The Florida Court of Appeals upheld denial of the guardianship petition. The court noted that Florida law strongly favors imposition of the least restrictive form of control over the lives of incapacitated adults, and decided that recognizing the validity of the power of attorney satisfied that requirement.
The Florida couple had been married eighteen years, their assets were modest and there was no indication that the agents under her power of attorney had misbehaved in any way. Given those facts, said the court, the guardianship petition should be dismissed, giving effect to the woman’s choice of agent and mechanism for managing her personal and financial decisions. Smith v. Lynch, July 24, 2002.
The result would probably be the same in Arizona. Though our statutes lack the strong language preferring the least restrictive alternative, courts almost universally apply the same principle. If there had been any indication of wrongdoing by the agents under the power of attorney, of course, the result likely would have been different. Court supervision, though expensive, at least gives some assurance that proper decisions will be made.
Although many of the legal problems facing the elderly and the disabled are addressed through state laws, the underlying problems are regional, national or even universal. Though the national medical program for the elderly and disabled, Medicaid, is partially funded and broad guidelines set by the federal government, program administration is handled exclusively by states. Another area of interstate problems is guardianship law, which is almost entirely state-specific. A recent case arising, ironically enough, in the District of Columbia involves the interplay of all of those issues.
Gerald McKenzie is a 38-year-old developmentally disabled man. He was born in the District of Columbia and lived his entire life there until two years ago. During most of those years he received much of his care through the federal Medicaid program, but from providers located in D.C. and based on his eligibility in the District.
Mr. McKenzie’s aunt Sheridan Bacchus was appointed as guardian of his person in 1995, and he lived with her for the next five years. When she moved to suburban Maryland in 2000, he moved along with her. Although both of them now live at a Maryland address, Ms. Bacchus intended to keep Mr. McKenzie enrolled in the same day-care program he attended while living in the District. The District notified her, however, that Mr. McKenzie’s services were terminated immediately upon learning of his relocation.
Ms. Bacchus appealed the termination of services. She argued that Mr. McKenzie is completely unable to make a conscious decision to change his residence, and that she as guardian has the right to make that determination. Although he physically lives in Maryland, she insists, it is her intention that he remain a resident of the District.
The D.C. Court of Appeals ruled against Ms. Bacchus. The Medicaid law, said the court, requires the states and the District to provide services only to those who actually reside within their respective boundaries. Because Mr. McKenzie lives in Maryland, even though only about one mile from the District’s boundary, he will have to apply for Medicaid benefits with Maryland. McKenzie v. DC DHS, July 11, 2002.
Mr. McKenzie will probably be eligible under Maryland’s Medicaid program. He will, however, have to go through the application process again (eligibility for Medicaid in one state does not transfer to a new state when the recipient moves).
Fortunately, D.C. law expressly permits the guardianship to continue even though Mr. McKenzie now lives in Maryland. Some states require establishment of a guardianship in the new state and termination of the old proceeding. Even so, Ms. Bacchus may find it increasingly difficult to secure treatment and make decisions with an “out of state” guardianship.
