Posts Tagged ‘guardianship’

Public Fiduciary Offices in Arizona

SEPTEMBER 20, 2016 VOLUME 23 NUMBER 35
When an individual living in Arizona becomes incapacitated, or needs financial protection because of diminishing capacity, a family member, friend or private professional fiduciary might be appointed to act as guardian (of the person) or conservator (of the estate). But what if there is no one available to act, or if all the possible candidates are disqualified for some reason?

For over four decades Arizona counties have had a public official who can act as guardian and/or conservator when no one else is available. The Public Fiduciary is designated in each county by the Board of Supervisors, and runs an office (and staff) funded by the county. In addition to guardianship and conservatorship, the office also handles probate of decedent’s estates when no one else can be appointed.

A handful of other states have similar offices, though most handle guardianship only, conservatorship only, or probate only. Many states have similar agencies that can act as guardian or conservator for particular groups of people — typically veterans, or the developmentally disabled. Arizona’s unique experiment was to group all those functions together into one office, and to call it the Public Fiduciary.

Does that mean that Arizona’s Public Fiduciary offices are an inexpensive alternative for poor families who don’t want to incur the costs of initiating guardianship, conservatorship or probate? No. Public Fiduciary offices do not represent families — they file petitions for the office’s own appointment instead of appointment of family members. They also charge fees, meaning that they may or may not be less expensive than private fiduciaries and lawyers representing family members. Most importantly, they will not act when there are suitable family members available.

Arizona’s Public Fiduciary offices have been a very positive success (though there have been individual incidents of abuse by at least two different Public Fiduciaries). Generally speaking, the offices act when estates are small, legal problems are substantial, and/or family members have misbehaved. But there are no formal limitations on the kinds of cases the Public Fiduciary can get involved with, and (though the experience is different in each county) public fiduciaries tend to be the most experienced, most knowledgeable resource for guardianship, conservatorship and probate problems in most counties.

You can read more at the website of the Pima County Public Fiduciary (that’s the county in which all of Tucson is located). There is a separate — but usually similarly-run — office in each Arizona county. Note that, at least in Tucson, the office also handles other, related functions — chief among those is management of the county burial system for indigent decedents or those who die without locatable family.

We last wrote specifically about the Pima County Public Fiduciary in (and this amazes even us) 1994. To put that in context: the office is now more than twice as old as when we last highlighted them. A considerable amount has changed since that time: for one thing, the current Pima County Public Fiduciary (well, the Interim Public Fiduciary, anyway) is the first non-lawyer to hold the office in its 42-year history. Peter Santini has been a core staff member for two decades, and is a logical choice to handle that role. His predecessor retired recently, and the County is in the process of making a permanent selection.

One thing hasn’t really changed in over twenty years. You can still make a referral to the Pima County Public Fiduciary by calling their office and talking with an intake person on staff. Their phone number: 520-724-5454.  Remember, though, that they only handle Pima County cases; there’s no point in contacting them about Public Fiduciary matters in any of Arizona’s other 13 counties, or for similar cases in other jurisdictions.

If you thought about it a minute, you’d probably guess that the availability of an office like the Public Fiduciary would mean that there are fewer private-industry alternatives for similar work in Arizona. In fact, though, the experience is exactly the opposite. Despite a robust and effective Public Fiduciary system in Arizona, the private fiduciary industry is much more extensive, better-regulated and more professional than in many other states. That may be partly a result of good training — a large portion of the private fiduciary industry learned how to handle guardianships, conservatorships and probates while working in their local Public Fiduciary offices.

Probate Judge’s Unique Guardianship Orders Overturned

AUGUST 1, 2016 VOLUME 23 NUMBER 29
At Fleming & Curti, PLC, we handle a lot of guardianship and conservatorship proceedings. We even act as guardian (of the person) and/or conservator (of the estate) in some cases — particularly when family members are unavailable or unable to agree on the best course of action. But one thing we consistently maintain: if there is any reasonable way to avoid a guardianship or conservatorship proceeding, it should be explored first. Court proceedings are expensive, interfere with the autonomy of the subject of the proceedings, and seldom result in entirely happy outcomes.

The most common way to avoid guardianship and conservatorship, of course, is for a person to sign a durable power of attorney (two, actually — one for health care and another for financial authority) naming someone to act on behalf of the signer. When confronted with a preexisting power of attorney, probate judges normally will appoint a guardian or conservator. Of course, if the person named in a power of attorney is acting improperly, the court will not hesitate to intervene. But usually a valid power of attorney avoids the need for court proceedings.

Of course, some family disputes can be intense — and often over the oddest and smallest issues. Take, for example, the case of Hazel McNabb (not her real name), an 89-year-old Indiana woman with six children. Her family’s disagreements arose, and hardened, over what to do after Hazel’s home was damaged by a tornado in 2013. Two of her children thought the bathroom could be repaired and used after the storm; four children felt that her bathroom should be remodeled.

Almost a decade before, Hazel had signed health care and financial powers of attorney, naming son Patrick and daughter Molly as co-agents. It was Molly and Patrick who thought no remodeling was required, and the other four children (Michael, Bridget, Kevin and Gabrielle) complained that, in the aftermath, Molly had begun to isolate them from their mother and cut them out of the discussions about her care.

Believing that Hazel’s mental faculties were declining, and that Patrick and Molly could not be trusted to act in her best interests, Kevin filed a petition asking for appointment of the four children as co-guardians. The probate judge held a hearing, and fashioned an unusual order: the judge appointed all six children as co-guardians, each with specific, limited authority.

Under the probate judge’s order, Michael (a priest) was appointed as guardian over Hazel’s “spiritual needs and affairs.” Bridget, a hairstylist, was appointed guardian over Hazel’s “health care needs and hygiene” (and specifically instructed to ensure that her hair and nails were styled on a regular basis). Molly, who had been named in the power of attorney, was appointed as guardian over Hazel’s “personal” finances (what in Arizona we might call conservatorship — though the limitation to “personal” finances is confusing). Kevin and Patrick were appointed as co-guardians to handle Hazel’s “business ventures” (though the nature of those business ventures is not clear from the appellate court opinion). The probate judge also set out a schedule of visitation to make sure each child would have regular contact with Hazel.

At the same time he entered this complicated order, the probate judge instructed all Hazel’s children that they needed to work together, and to keep Hazel’s interests in mind at all times. He directed that they were all to consider Hazel’s “input and feelings concerning a specific issue before making a decision.”

One odd result from this order is based on Indiana’s law on guardianship: if a preexisting power of attorney is in place, a guardian has no authority over the items managed through the power of attorney unless the probate judge expressly orders revocation of the power of attorney. Since that was not done in Hazel’s case, it meant that Patrick and Molly, the two agents, would still have authority over all health care and financial decisions. Unsurprisingly, those two children declined to accept their appointments as, essentially, limited conservators of a portion (each) of Hazel’s property. Instead, they appealed the probate judge’s findings and order.

Molly and Patrick argued that Hazel was not, in fact, incapacitated at all — and if she was, no guardian was necessary because the power of attorney was working as she had intended. The Indiana Court of Appeals disagreed about the finding of incapacity, but agreed that the existence of the power of attorney might make the unusual guardianship order unnecessary.

According to the appellate court, when a power of attorney is in place it might be unnecessary to appoint a guardian at all. In fact, since the power of attorney was not revoked by the probate judge, the guardians really had no power — the agents named in the power of attorney held all the authority. While agreeing that Hazel was incapacitated, the Court of Appeals reversed the order appointing multiple guardians and remanded the case for the probate judge to reconsider whether there was any need for a guardianship at all. Guardianship of Morris, July 12, 2016.

The probate judge in Hazel’s case should probably be commended for his attempt to bring her family back to the table to discuss her care together. Nonetheless, consideration for her wishes should mean that the default outcome will be recognition of her power(s) of attorney — unless it can be shown that the agents are behaving inappropriately, or failing to act.

Would the same result occur in Arizona courts? Probably not — or at least not for the same reasons. Arizona does not have a law like the Indiana statute giving continuing priority to agents under a durable power of attorney. Instead, the relative authority between a guardian, conservator and agent under one or more powers of attorney are somewhat unsettled in Arizona law. A person is able to indicate their preference for who should be appointed as guardian or conservator, and in practice a power of attorney will usually avoid the need for court involvement — but there is less clarity about the legal status than in Indiana law.

Maine Guardianship Violates Uniform Jurisdiction Act

JULY 25, 2016 VOLUME 23 NUMBER 28
Before any guardianship or conservatorship action can be filed in a local court, the court must have jurisdiction over the person subjected to the proceeding. For many decades that had meant (more or less) that the person must be physically present in the state, and not much more. That began to change in 2007, with the proposal, and quick adoption in most states, of the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the UAGPPJA).

Arizona, for instance, adopted the UAGPPJA in 2010. It has now been adopted by 45 states (plus the District of Columbia and Puerto Rico); the holdout states are Florida, Kansas, Michigan, Texas and Wisconsin. The law is intended to address, among other things, the problem of interstate disputes among family members — and especially to prevent warring family members from gaining tactical advantage by moving incapacitated family members involuntarily to a new state before filing a court proceeding. It received much of its impetus from the celebrated case of Lillian Glasser, whose family and friends fought over where to file her guardianship proceeding. In that regard, it is mildly ironic that one of the remaining states not adopting the UAGPPJA is Texas, where half of Ms. Glasser’s disputed guardianship case played out. Ms. Glasser herself, incidentally, died in her Florida home in 2011 — in yet another one of the few states not yet adopting the UAGPPJA.

The UAGPPJA actually addresses other, more mundane issues, as well. It establishes a mechanism for transferring guardianship proceedings to a new state when the subject of the proceedings moves. It also makes it easier for guardians (and conservators) to establish their authority in states other than the one in which the proceedings are filed. All that should make management of guardianship easier — even across state lines.

Despite its adoption in almost every state, there is precious little case law interpreting the UAGPPJA. A recent case out of Maine adds to the interpretation of the law, and helps reinforce the principles that gave rise to its adoption.

What should happen, then, when a person who needs a guardian travels across state lines, and comes to the attention of the court in a state where they do not live? If they got to the new state by the acts of a family member seeking advantage, it seems easy to answer that the family member’s misbehavior should not be rewarded. But what if there was no misbehavior — and, indeed, no family member or friend involved?

That is the dilemma that faced the Maine probate court in the case of Henry Smith (not his real name). Henry had lived for years in California. After he had a stroke in 2012, he was partially paralyzed. In an apparent attempt to get back to his original hometown in Canada, he sold his house in California and traveled across the country. He spent time in Washington State, Arizona, New Mexico and Georgia before arriving in Maine one day in 2013.

Henry checked into a hotel in Portland, Maine, and asked the staff to help him with transfers from his wheelchair to bed and to the toilet. After they worked with him that first night, the hotel staff became concerned about his ability to take care of himself, and called the police.

Portland police visited Henry, decided he was unable to make his own decisions, and took him to the psychiatric unit at a local hospital. From there, Henry was involuntarily committed for mental health treatment and then released to an assisted living facility — but not before a guardianship proceeding was initiated.

Because Henry had no family, friends or even acquaintances in Maine, the probate court appointed the public guardian to manage Henry’s placement and care. The court did give Henry some autonomy to make at least some of his personal decisions, but the public guardian was ultimately in charge of where he would live, whether he could return to either Canada or California, and what medical care he would receive.

Henry appealed his guardianship, and the Maine Supreme Court agreed with his objections. The UAGPPJA, ruled the Court, allowed an emergency guardianship order in Maine, but only for a six-month period. Since the guardianship had by that time already been in place for almost two years, the UAGPPJA’s jurisdictional limitations had already been violated. The Court did give the public guardian forty-five more days to figure out where Henry should be cared for. Guardianship of Sanders, July 7, 2016.

Does that mean that Henry must be released by Maine to continue his travels toward Canada, regardless of how ill-advised that plan might be? Not necessarily. The UAGPPJA requires that a person’s “home state” should have priority to act — and that means that California (his original home) should be given the chance to take responsibility for Henry’s decision-making. But if California declines or refuses to act, Maine courts may once again have the authority to continue the guardianship.

By our count, this is just the third appellate decision relying on the UAGPPJA (the other two were in Arkansas in 2009, and Tennessee in 2013). It seems that the mere existence of the law has significantly reduced the abuses that seemed so widespread when we first wrote about Lillian Glasser’s case back in 2007.

Subject of Guardianship Allowed to Hire Own Attorney

JULY 4, 2016 VOLUME 23 NUMBER 25
Just two weeks ago we told you about an Ohio appellate decision dealing with the authority of a close family member (in that case a sister) to participate in, and appeal from, a guardianship hearing. At about the same time another Ohio appellate court was dealing with a related question for guardianship proceedings: does the subject of a guardianship have the right to hire his or her own attorney? Spoiler alert: yes.

Janna Christensen (not her real name) was the subject of a guardianship proceeding in Marion County, Ohio. Her daughter Maria was appointed as her guardian in January of 2013.

By mid-2015, Janna wanted to terminate or modify her guardianship. Another daughter of Janna, and Janna’s brother, helped her get in touch with attorney Brian Cook, who agreed to represent her. Because his new client had a guardian appointed, Mr. Cook asked for court approval for her signature on a retainer agreement or, in the alternative, an instruction that Maria should sign on her mother’s behalf.

At a hearing a week later, however, the probate judge was skeptical about Mr. Cook’s involvement. The judge criticized Mr. Cook, saying: “I don’t disagree that [Janna] has the right to independent counsel,” but “you have also usurped the authority of the guardian and the Court who’s the superior guardian” for Janna. In other words, the Judge felt that the decision about hiring an attorney was one for Maria or the judge, not for Janna herself.

At that same hearing, with Janna not present (and without allowing Mr. Cook to speak on her behalf), the probate judge went on to deny Janna’s request for a review. At a later hearing, again without Janna present and without allowing Mr. Cook to represent her, the probate judge went further and agreed with Maria that visitation by other family members should be limited.

Mr. Cook nonetheless filed an appeal on behalf of Janna. The Ohio Court of Appeals agreed with his analysis, and reversed the local probate judge. There were at least three problems with the probate court order, according to the appellate court:

  1. The ward in a guardianship proceeding is entitled to be present at hearings. When Janna specifically asked to be present, to be heard, and to have a specific attorney represent her, the probate judge was wrong to make a decision about her attorney without granting her request to participate.
  2. Janna had a right to choose her own attorney, and her choice should not have been subjected to her daughter’s oversight.
  3. Maria’s request to restrict her visitors should not have been considered without Janna’s presence, especially since she had specifically asked to be there, to address the court, and to have her attorney represent her.

Generally speaking, the subject of a guardianship proceeding should be given the right to select their own attorney. The probate court’s decision in Janna’s case to gloss over that right was cause for reversal of its orders, and the entire proceeding was remanded for further proceedings — with Janna’s attorney in place. Guardianship of Carpenter, June 13, 2016.

Unmentioned in the Court of Appeals proceeding, but of great concern in some of the pleadings filed in the case, is that Maria, the daughter appointed as guardian, has already charged over $90,000 in fees in her administration of her mother’s estate. Maria is an attorney in Marion, Ohio, and she apparently charged her regular attorney’s rate of between $175 and $200 per hour for the work she did in managing her mother’s affairs, her finances — and her visitors.

Would a similar result occur in Arizona? Yes, almost certainly. Though there is no clear statutory provision authorizing the subject of a guardianship or conservatorship to hire his or her own attorney, the implication in the statutes — and the universal practice — would permit such a decision. It may not be hard to imagine circumstances in which the probate court might question whether the legal representation was actually initiated by the client, or for the purposes of advancing the client’s wishes, but that would be the rare circumstance. In general, even a person who has been found to be incapacitated will — and should — be permitted to select their own attorney.

Would the same outcome be anticipated in every state? Perhaps not. Some states might take the position (either by law or by practice) that the determination that a person lacked capacity precluded them from hiring an attorney. That position would, however, be wrongheaded, misguided, and antediluvian. Not that we feel strongly about it or anything.

Concerned Sister Permitted to Intervene in Guardianship Proceeding

JUNE 20, 2016 VOLUME 23 NUMBER 23
Suppose your sister is developmentally disabled, and your brother has been appointed as her guardian, to make medical, placement and other decisions. Suppose your brother has moved her to a facility you aren’t sure about, and has restricted family access to visit her. Can you do anything to question his decisions as a guardian?

In Arizona, at least, the answer would be straightforward. Any interested person can appear in a guardianship or conservatorship proceeding, and siblings would clearly qualify.

That doesn’t mean that your concerns would necessarily be resolved. The probate judge might ultimately decide that your brother was behaving appropriately, and your efforts might be ineffective. But you would have the opportunity to be heard, and you probably would be able to get access to medical and other records necessary to make your pitch — within reason. Oh, it’s worth noting that you also would have to pay a court filing fee, and that you would be held to the same standards regulating other litigants — no frivolous filings, no wild accusations, no inflammatory pleadings. But you would have the opportunity to be heard.

That isn’t always true in every circumstance or in every state. But you can now add one more state to the list in which you probably have the ability to get involved.

Jacqui Swensen (not her real name) is the concerned sister in our story. Her sister Tamara lives in Ohio, and is in her fifties. Tamara lived at home with the sisters’ parents until they could no longer care for her; in 2013 Tamara’s brother Jeff and sister Charlene were appointed as guardians. Tamara now lives in a group home near where she lived for most of her life.

Altogether there are nine surviving Swensen children, and they live all over the country — except for Tamara, Jeff and Charlene, who all stayed in Ohio. The other siblings visit frequently, have Tamara visit in their homes from time to time, and remain actively involved, even though Jeff and Charlene have been the ones with legal authority as the guardians.

When Tamara moved from her family home to the group home, Jeff limited visits from family members and Tamara’s travel to their homes. He explained that he wanted to help ease the transition into the group home, but several of the siblings became concerned. He did permit Tamara to visit her siblings, though — including a trip to Jacqui’s home after the move-in had been completed.

While Tamara visited her, Jacqui became concerned about her health — both physical and mental. She had a persistent rash, and was not handling her grooming well. Jacqui also expressed concern about her mental health; that concern was echoed by another sister, who reported that during her visit Tamara had several crying episodes.

Jeff followed up on the rash, and it was ultimately found to be scabies. He also undertook to review other care issues with the group home, and to respond to his siblings’ concerns. By this time, though, family communication was tense.

Jacqui filed a request with the probate court for review of the guardianship, and some months later (after a failed attempt at mediation) the court held four days of hearings. All the siblings were permitted to spell out their concerns and introduce evidence. At the conclusion of the hearings, the court ruled that Jeff could continue as guardian and ordered a set visitation schedule.

Jacqui filed an appeal, but Jeff objected. She was not actually a party to the proceedings, he argued, and so didn’t have any right to appeal.

The Ohio Court of Appeals dealt with the question of Jacqui’s standing to appeal. First, the appellate court noted that Jeff’s point was well-taken: if Jacqui was not a party, she could not appeal the decision. But the probate court was wrong, ruled the judges, to deny Jacqui’s request to formally intervene in the guardianship in the first instance.

Though Jacqui and the other siblings had been permitted to participate, to call witnesses and cross-examine Jeff’s witnesses, the probate judge had not granted her formal status as an intervening party. That, said the Court of Appeals, was a mistake. Partly because of the unique nature of guardianship proceedings, the interest of a sibling in monitoring the care and welfare of a person in Tamara’s position should militate in favor of allowing them to intervene. Guardianship of Sweeney, June 2, 2016.

It is important to note that the appellate court expressly did not agree with Jacqui’s objections to the probate court’s rulings on the merits. Jeff’s guardianship was confirmed, and his authority to regulate Tamara’s care was reinforced. The visitation schedule remained in effect, as well. But Jacqui now clearly has the legal authority to intervene in her sister’s guardianship, and assurance that her views will be heard.

Lawyers Continue Battle After Guardianship Dismissal

MAY 23, 2016 VOLUME 23 NUMBER 20
It will come as no surprise to anyone who has been involved in guardianship and conservatorship proceedings: the legal fees and related costs can often spiral out of control. Though most guardianship proceedings do not cost tens of thousands of dollars, some do. In fact, the battle can sometimes be about the attorneys’ fees, rather than the need for a guardianship.

A recent case in North Carolina illustrated this problem. It involved a woman we’re going to refer to as Connie, who was estranged from her brother Fred, her closest relative.

Connie knew that she was slipping, and that she was losing her ability to handle her own finances and personal decisions. She consulted a long-time friend, Harriet Hopkins. Ms. Hopkins was a lawyer practicing in the community, and she prepared the documents Connie needed — including a durable financial power of attorney. Because she had no one else to name, Connie chose to make Ms. Hopkins the agent under her power of attorney.

Some time later brother Fred learned that his sister was failing, that her attorney was managing her affairs and (most concerning to Fred) that the power of attorney included a provision that would have allowed Ms. Hopkins to make gifts to herself from Connie’s assets and income. Fred decided that he needed to file a court proceeding to get himself — or someone independent — appointed to take care of Connie’s finances and medical decisions. He hired lawyer James West to pursue the guardianship for him.

As in some other states, in North Carolina initiation of a guardianship automatically results in appointment of a lawyer as “guardian ad litem” for the subject of the proceedings. A local lawyer, Lynn Andrews, was appointed; she immediately reported that she was close friends with Ms. Hopkins and should not be appointed. The local court appointed another attorney as Connie’s guardian ad litem, and Fred’s lawyer began to discuss the case with her.

Very shortly after the case began, however, attorney Andrews let the other two lawyers know that Connie had hired Ms. Andrews as her personal lawyer. She vigorously objected to the proceedings on Connie’s behalf, and filed a motion to dismiss the guardianship altogether. Her argument: there was no doubt that Connie’s capacity was in decline, but no guardian was necessary because Connie had taken appropriate steps to assure her care was supervised and her finances taken care of.

In the course of the controversy, and in order to make sure there were no concerns, Connie signed a new power of attorney. The new document still named Ms. Hopkins as her agent, but removed the authority to make gifts. Everyone agreed that no gifts had actually been made while Ms. Hopkins held that power.

Fred’s petition for guardianship was dismissed within about a month of its initial filing. There were some further skirmishes about the precise terms of the dismissal, but Connie was no longer at any risk of having the court appoint a guardian — Fred or anyone else. And that might have been the end of things.

After the dismissal was finalized, Ms. Andrews filed a new petition with the guardianship court. She alleged that Fred and Mr. West, his lawyer, had behaved improperly by filing a guardianship petition without any basis. She sought an order requiring, as a penalty, payment of Connie’s legal fees by both Fred and his lawyer.

Mr. West responded by filing a petition against Ms. Andrews, asking that she be sanctioned, and ordered to pay his attorney’s fees and costs. His argument: by filing the request for personal sanctions against him (and his client) for allegedly abusive legal proceedings, Ms. Andrews had herself abused the legal system.

After a three-day hearing (which, it is worth repeating, was not about Connie’s capacity or her possible need for a guardian), the trial judge decided that sanctions against Ms. Andrews were appropriate. He first ordered that she would be personally responsible for Fred’s legal fees; later, the judge found that the total fees and costs of $122,987.72 should be assessed against her.

The North Carolina Court of Appeals considered the judge’s order, and decided (by a 2-1 vote, incidentally) that the case did not warrant any punishment against Ms. Andrews. The attorney’s fee award was reversed, and each side ended up paying their own legal fees (though Fred was ordered to pay the cost of a multidisciplinary evaluation of Connie that had been conducted for the proceedings below). Matter of Cranor, May 17, 2016.

What does Connie’s case tell us about guardianship and conservatorship in Arizona? While the proceedings can be different from state to state, some rules do apply across most states. One of those is that the parties — and their lawyers — have a duty not to let the proceedings run up giant legal bills.

A leading Arizona case addresses somewhat similar facts, but with a slightly different result. In the Arizona case, our Court of Appeals ultimately ruled that the lawyer for a guardian and conservator has a duty to constantly recalibrate one question: is the legal representation justifiable considering the cost and possible benefit to the ward?

Guardianship / Conservatorship Petition Backfires on Son Who Exploited Mother

MAY 2, 2016 VOLUME 23 NUMBER 17

When a litigant asks the court for particular relief, lawyers call the request a “prayer.” It isn’t always as spiritual or respectful as that sounds, but it does give us a chance to offer good generalized legal — and life — advice: be careful what you pray for.

Consider the family of Martha Young (not her real name). She had two children, son Donald and daughter Joanne. When Martha was in her early 90s, her ability to manage her own affairs had slipped somewhat, and Donald decided he needed to get legal authority to handle her affairs. He filed a petition for guardianship (of the person) and conservatorship (of the estate) in the Maricopa County (Phoenix) courts.

Donald immediately thought better of his prayer for relief, and dismissed the case before his mother or his sister had answered it. Still, Martha and her attorney filed a response — but rather than simply objecting to the guardianship and conservatorship, she alleged that Donald had stolen money from her, and had put the money he took into an account in his name alone. She alleged that she was a vulnerable adult under Arizona law, and asked that Donald be ordered to return her money.

The probate court ordered Donald to return the funds in question, and he appealed. The Arizona Court of Appeals reversed, finding that there was no jurisdiction in the probate court once Donald dismissed his initial petition. That looked like it might be the end of things.

Then Charles Schwab, where the account in question was held, filed a separate action with the court. The investment company said it knew about the allegations of theft and exploitation, and it didn’t want to turn the money over to the wrong person. Charles Schwab asked the court to tell it who should receive the balance of the account Donald had set up.

That got the issues back before the court. Donald insisted that his mother had given her half of a large parcel of land she had owned, and that when the land was sold (yielding $818,955.61), his mother had moved half of the net proceeds into an account in his name. With “her” half of the sale proceeds, she bought a home (leaving a small balance which, Donald insisted, she had voluntarily added to “his” half of the sale proceeds). After a number of transactions, the $150,000 of remaining funds found their way into the Charles Schwab account.

Meanwhile, it turned out that the bank where Donald had opened his account had filed a report with Adult Protective Services, expressing concern about the way Martha’s finances were being handled and her ability to protect herself. That report had led to an investigation but (apparently) no action to stop the use of funds or recover any of the money for Martha.

Here’s one of Donald’s problems: when he filed the guardianship and conservatorship petition against his mother, he listed the bank account as one of her assets. But the court ultimately ruled that, since the conservatorship matter had never been litigated, Donald could not be held to the position he took in the initial filing. Similarly, Martha’s claim could not be dismissed on statute of limitations grounds, since she had made a good-faith effort to recover her funds when she filed the petition in the guardianship and conservatorship action — even though it was ultimately dismissed by the Court of Appeals.

After a two-day trial, the judge ruled that Martha was a vulnerable adult (and had been for almost a decade), that Donald had acted as her de facto conservator throughout the banking and real estate transactions, and that the Charles Schwab account really belonged to Martha. The judge ordered Schwab to turn the money over to Martha’s estate (by the time of the court ruling she had died), and also imposed a judgment against Donald for attorney’s fees — another $92,000.

Donald appealed, arguing that Martha’s claims should have been dismissed because they were filed years after she knew or should have known to file her lawsuit. He also argued that he should not have to pay attorney’s fees to his mother’s estate, and that he had not been shown to have exploited his mother financially.

The Court of Appeals noted that the evidence had shown that Donald lived with his mother for years, that he had seriously reduced the value of her home property (five dumpsters of his trash was removed after her death and his eviction from the property), that Martha had weighed just 62 pounds when her daughter had her removed from Donald’s care, and that he had managed her affairs for at least five years before the litigation began. Donald had to admit that his mother had been unable to manage her own affairs for at least five years before his initial court filing — that was what he had alleged in that first petition seeking control of her affairs.

After review of all the evidence considered by the trial court, the Court of Appeals upheld the lower court’s rulings. The judgment against Donald — for return of all the funds in the Charles Schwab account plus over $100,000 in attorney’s fees and interest on those awards. The court also ordered Donald to pay attorney’s fees for the appeal, in an amount to be determined after his mother’s estate’s attorneys file fee affidavits with the court. Yamamoto v. Kercsmar & Feltus, April 19, 2016.

Not Every Confused Senior Needs a Guardian or Conservator

APRIL 11, 2016 VOLUME 23 NUMBER 14

It is unusual to see an appellate court decision overturning an order appointing a guardian (of the person) or conservator (of the estate). Judges tend to be protective about elderly people showing even a little evidence of mental decline — often to the point of paternalism. It was refreshing to read a Missouri Court of Appeals decision last month that reversed a probate judge’s appointment of a conservator.

The legal story of Dave Burbank (not his real name) began in his 83rd year. He had recently married Cathy, after the death of his wife of almost forty years. Though he was retired, Dave and Cathy lived on a farm in rural Missouri, and actively managed the farm. He had recently entered into a handshake arrangement with neighbors for the sale and lease of a piece of land, and he had signed health care powers of attorney naming the same neighbors as his agents.

When a complaint was filed with Missouri’s Adult Protective Services, they conducted an investigation. Among the things APS did was to arrange a visit with a nurse practitioner; she reported that Dave was unable to complete a “clock test” — when instructed to draw a clock face with the hands pointing to a designated time, he could not follow the instruction. Based on that, the nurse practitioner determined that Dave “lacked the ability to make sound decisions because he lacked the ability to show insight or communication clearly.”

At a court hearing some months later, the local probate judge found Dave to be incapacitated and disabled. The judge appointed Dave’s daughter and the local Public Administrator to be co-guardians and co-conservators, and also ordered that recent transactions entered into by Dave would be voided, and that his marriage to Cathy was invalid.

Dave moved for reconsideration, and four months after the initial proceedings the probate judge conducted a follow-up hearing. At that hearing, the Public Administrator testified that, now that she’d had a chance to meet Dave, she believed that he was able to manage his affairs. Cheryl seemed to be helping with Dave’s needs and care, and acting appropriately. In fact, according to the Public Administrator, the only real concern was what seemed to be the transactions entered into with the neighbors who had filed the original petition — she thought that their handshake deal seemed to take advantage of Dave.

A doctor who completed a more thorough medical evaluation than in the original proceedings agreed that Dave was friendly, cooperative, engaging and generally capable. It was true, the witnesses agreed, that he was losing some ability to recall recent events (and even seeing some long-term memory loss), and that he suffered from mild cognitive decline. But he could sign a new power of attorney, designating his wife (or someone) to help him with more complicated transactions.

According to the doctor evaluating Dave, it would be appropriate to consider a court-appointed conservator who could slow down any “sudden, rash or misdirected financial decisions” that he might be manipulated into undertaking. Based on that, and (presumably) on the natural tendency to be protective, the probate judge decided to modify the original order he had imposed. This time, he appointed Cheryl to serve as the sole conservator, with her authority limited to preventing any transfer of sale, transfer or conversion of real estate owned by Dave.

Still not satisfied with the reduced court intervention, Dave appealed. The Missouri Court of Appeals considered his argument that there had been insufficient evidence to impose even the limited conservatorship, and agreed. The probate court order was reversed, and the conservatorship ended.

The appellate court noted that a guardianship or conservatorship must be shown by “clear and convincing evidence,” a higher standard than the usual requirement for civil lawsuits. Considering all the testimony, and the fact that the initial proceedings were initiated by the very people who appeared to have taken business advantage of Dave, the appellate judges ruled that the record was “devoid of clear and convincing evidence” of his disability. In the Matter of Barnard, March 22, 2016.

Would Dave’s experience be the same, or similar, in Arizona courts? It might well be.

First, Arizona law is essentially similar to the appellate court’s description of Missouri’s law on guardianship and conservatorship. As in Missouri, the Arizona rules require proof by “clear and convincing evidence.” That’s higher than the “preponderance of the evidence” standard imposed on most civil lawsuits, though not as high a burden as the “beyond a reasonable doubt” standard applied in criminal cases.

Arizona also has an additional requirement before appointment of a guardian (of the person) can be considered: the court must specifically find that a person in Dave’s position would be unable to provide for their own food, shelter and necessities without the assistance or intervention of a guardian. That seems like it would have been difficult to show in Dave’s case, and that would probably mean no guardian would be appointed — but it would not prevent appointment of a conservator or limited conservator (of the estate).

It seems likely that, if an Arizona court appointed a guardian, conservator, or limited conservator for someone with a story similar to Dave’s, the appellate court in Arizona would (like the Missouri Court of Appeals) reverse the appointment. But would a probate judge in Arizona appoint a guardian or conservator in the first instance?

It’s hard to generalize, since probate judges vary widely in their experiences, resources and attitudes. We would hope that a Tucson (Pima County) probate judge would not have appointed a guardian, conservator or limited conservator on the basis of evidence as flimsy as that introduced in Dave’s initial and subsequent court proceedings. Judges, though, are often protective — and sometimes overprotective.

Our bottom line: we admire Dave for his persistence and his ability to object to even the limited conservatorship imposed on him. We are proud of him, and of the Missouri Court of Appeals.

Mediation in Guardianship Proceeding Can Be Effective, But Raises Questions

FEBRUARY 8, 2016 VOLUME 23 NUMBER 6

Sometimes court proceedings are necessary in order to resolve differences of opinion — but almost everyone recognizes that it is good to seek resolution by a simple agreement when the parties can resolve their differences outside court. Mediation, for instance, is a great way to resolve many legal disputes. The parties to a lawsuit (or a potential lawsuit) meet with a professional mediator, and they discuss (either in separate sessions or, sometimes, in a common meeting) how they might work things out short of a court hearing. The result can be positive, and is almost always less expensive than a full court process. If a mediation has been handled particularly well, both parties (or all parties, for sometimes there are multiple positions being espoused) think they got less than they really wanted but more than they might have gotten if the case had gone to trial.

But what about guardianship (and conservatorship) proceedings? How can someone who is alleged to be incapacitated participate in mediation? Assuming the mediation is successful, how can someone who lacks legal capacity even agree to the settlement reached after mediation?

Because of the particular nature of guardianship and conservatorship proceedings, it can sometimes be impossible to enter into a meaningful mediation. One other problem: after a court hearing appointing a guardian or conservator, the legal fees of the petitioner (the family member or professional bringing the action) and the subject of the proceeding are both usually paid from the subject’s assets. But how will the cost of mediation be shared, and what incentive does everyone have to participate?

Notwithstanding these problems, guardianship mediation can and does work. At Fleming & Curti, PLC, for example, we frequently encourage mediation, whether we represent the family member petitioning, the family member objecting, or the subject of the proceedings. Mediation can result in a less-restrictive outcome (perhaps the subject of the proceedings could create a trust, or sign a power of attorney, for example), and gives the subject of the proceeding a much clearer voice in making decisions (as, for instance, when the subject objects to the proceedings — but particularly objects to the possible appointment of one family member).

But guardianship mediation still can be problematic. A recent Florida case showed why that can be.

Arnold Gabriel (not his real name) is a paranoid schizophrenic living in Florida with his aunt. He knows that he has mental health issues, but he thinks he gets along pretty well with the help of his aunt and his cousin, Linda Freeman. But Arnold’s brother Walter does not agree — he thinks that Arnold is at risk in the community, and that someone needs to be monitoring his condition and care at all times.

Walter filed a petition with the Florida courts seeking to be appointed as guardian of Arnold’s person — he hoped to be given authority to determine Arnold’s physical placement, and he thought Arnold probably needed to go to a state facility. Arnold disagreed, and so did cousin Linda. Linda filed a counter-petition, seeking to be appointed as guardian of both the person and property (what we in Arizona would call conservator) over Arnold. The Florida court set a hearing on the competing petitions.

Meanwhile, the three parties and their attorneys agreed to try mediation. They set a time and met with a mediator, and everyone agreed to try a less restrictive alternative. Walter’s petition for guardianship of the person, and Linda’s petition for guardianship of the person and property, would both be dismissed. Linda would act as Arnold’s agent for both medical and health decisions, and both she and Arnold would agree to share medical and financial information with Walter so that he could monitor his brother’s care and condition. They also agreed that Arnold would be re-evaluated by a neutral care manager every six months to see if his care needed to be reviewed. Arnold and Walter would agree to communicate better about Arnold’s status and condition.

Both Walter and Linda dismissed their respective petitions, and things appear to have gone well for about a year. Then Arnold decided not to share information with his brother, and filed a court proceeding seeking a determination that the agreement was void and unenforceable.

Arnold claimed that he had felt pressured to enter into the agreement out of fear that his only alternative was to be committed to a state mental facility. Besides, he and Linda argued, Arnold lacked the mental capacity necessary to enter into an enforceable agreement. One piece of evidence showing he lacked the necessary capacity: the court evaluation undertaken in connection with the initial guardianship petition had resulted in a determination that he lacked capacity.

The Florida trial judge granted Walter’s motion for summary judgment, ruling that the mediation agreement was enforceable and Arnold would need to live up to it. Furthermore, the court ordered that Arnold’s estate should bear the legal costs incurred by Walter in pursuing the guardianship and enforcing the settlement agreement.

The Florida Court of Appeals upheld the trial judge’s ruling. There was no legal impediment to Arnold entering into the agreement, reasoned the appellate judges, because there had not been any court finding that Arnold was incapacitated. The trial judge’s interpretation of the agreement — and the award of legal fees — made sense in the circumstances. Gort v. Gort, February 3, 2016.

The appellate court noted that there is an earlier Florida case — Jasser v. Saadeh (Fla. App. 2012) — that appears to support the exact opposite holding. In that case, the mediation agreement had included a provision that the subject of the proceeding would sign a trust, and the trustee would manage her finances. The problem with that, said the appellate court in this later case, was that (a) the subject’s condition was dementia, not schizophrenia, and was therefore more related to her capacity, and (b) the issue in that earlier case was capacity to sign a trust, not capacity to enter into a settlement agreement.

Candidly, though, those distinctions have to be seen as difficult to support — the real issue, we submit, is whether the courts can be comfortable with an allegedly incapacitated person signing a given settlement agreement. Our position: the law should be made clear that the courts should support non-judicial settlement, and mediation in these difficult, emotional cases should be encouraged.

We Are Creeping Up On a Quarter Century Here

JANUARY 4, 2016 VOLUME 23 NUMBER 1

Note the “Volume” number above. Is it even possible that we’ve been doing this for 23 years?

In that time, a number of topics have been perennially popular. We see a lot of internet traffic, and get a lot of questions or comments, when we write about:

Of all those topics (we now have an archive of well over a thousand weekly newsletter articles), which is our favorite? That’s easy: the one you read, gain something from, and have a follow-up question about.

So what’s your question? We won’t try to give individualized legal advice, but maybe we can help you with a relevant legal principle, or perhaps we can elucidate some of your alternatives. We will often tell you that the right answer is “consult an attorney,” but maybe you can get to the attorney’s office as a better-informed client.

Oh, and Happy New Year.

©2016 Fleming & Curti, PLC
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