Posts Tagged ‘incapacity’

Court Annuls Marriage After Death of “Spouse”

JANUARY 20, 2014 VOLUME 21 NUMBER 3

Cynthia Madsen (not her real name) was, according to her doctor, already showing signs of dementia in 2007. In fact, her doctor wrote that she was not able to manage her own financial affairs. By mid-2009, her condition had worsened; her doctor wrote that she could not make decisions in her own best interests, and that her children should seek a guardianship because there was danger that someone might try to take advantage of her.

No guardianship or conservatorship proceeding was initiated, though — Cynthia continued to live at home with the assistance of a caregiver and a live-in friend named Patrick. In 2011 — almost two years after her doctor reported that Cynthia could make no decisions on her own — Patrick asked Cynthia’s minister to officiate as he and Cynthia got married. The minister refused, saying he did not believe Cynthia was competent to make such a life decision.

Things began to accelerate a few months later. Cynthia was admitted to the hospital . Cynthia’s daughter filed a guardianship and conservatorship proceeding. In the course of that proceeding, a court-appointed investigator interviewed Cynthia and wrote that she was incapacitated; the investigator recommended that a full guardian and conservator should be appointed. The next day, Patrick and Cynthia were married. Two days after that, Cynthia’s daughter was appointed as her temporary guardian and conservator, and moved her to a care facility.

As guardian and conservator, Cynthia’s daughter filed a petition to dissolve the marriage or, in the alternative, to annul it. The difference is important — dissolution of the marriage (what most of us still refer to as “divorce,” though the terminology changed decades ago) recognizes that the married couple are unhappy in the marriage, or that at least one of them believes the marriage is irretrievably broken. Annulment, on the other hand, recognizes that the marriage was never valid in the first place.

While the dissolution/annulment case was pending, Cynthia died. The divorce court promptly dismissed the dissolution part of the petition — a divorce can not be granted after the death of one spouse, since the marriage is, in a sense, dissolved by the death. But the annulment proceeding continued. Ultimately, the court ruled that Cynthia was incompetent to enter into a marriage contract, and so the marriage never was effective. The annulment was granted.

The Arizona Court of Appeals upheld the annulment. It is irrelevant, ruled the judges, that Patrick claimed that neither he nor Cynthia was unhappy in the marriage. It is irrelevant that Cynthia died while the case was pending. In this case, there was clear evidence that Cynthia did not understand the nature and significance of the marriage ceremony, and the trial judge’s determination that there was no effective marriage was allowed to stand. Savittieri v. Williams, January 2, 2014.

At Elder Law Issues we have written about this question before. In October of last year we reported on a Wisconsin case in which an annulment proceeding was allowed to continue after the death of the incompetent “spouse.” At the time we noted that we had not seen Arizona cases with the same facts, but we predicted that the result would likely be the same in Arizona. The Savittieri case shows that we predicted correctly.

It is worth noting that the result in this new Arizona case did not depend on the fact that a guardian and conservator was appointed almost immediately after the “marriage” ceremony. The fact of guardianship and conservatorship, by themselves, would probably not be enough to invalidate the marriage. As we have previously noted (this time citing a Missouri case with illustrative facts), the question is not whether a guardian or conservator was, or could be, appointed — it is whether the person understood the nature of the marriage and had mental capacity to enter into the marital contract itself. Cynthia did not — the guardianship and conservatorship were based on that incapacity, but did not necessarily prove it.

Can a Person with Dementia Sign Legal Documents? (Part 2)

MARCH 4, 2013 VOLUME 20 NUMBER 9
Last week we posed the question, and then mostly wrote about competence (or capacity) to sign a will. We promised to explain more about the level of competence required to sign other documents. So let us now tackle that concept.

A person with a diagnosis of dementia may well be able to sign legal documents, at least in Arizona. We suspect that the answer should be pretty much the same in other states, but if you are curious about your own state you should check with a local attorney about how competence is determined.

Generally speaking, competence or capacity is usually analyzed situationally. That is, the question will be answered differently depending on the nature of the document and the circumstances of the signing. The general rule: the signer has to have sufficient understanding to know what the document is, and the effect of the signing.

What kinds of documents might be involved? There are a variety of contexts in which capacity can be difficult to assess, including (but not limited to):

  • Ability to sign a contract — say to buy a car, or build a home.
  • Understanding of a power of attorney, which might give the authority to another person to sign future documents.
  • Competence to sign a trust, which might have elements of agency (like a power of attorney) and testamentary effect (like a will).
  • Capacity to get married (which is, after all, a specialized kind of contract).
  • Ability to make medical decisions — including refusing medication, or either seeking or declining mental health treatment.

Each of those situations, and the dozens of others that might arise, will be judged differently, because the nature and effect of the act will be different. But we can generalize about several of the important rules that cut across types of documents:

  • Minority is presumptive incapacity. That is, a person under age 18 does not have the legal ability to enter into a contract, get married, sign a trust (or will), or make medical decisions for themselves. There are, however, exceptions — a contract for “necessaries” (food, shelter, etc.) may be enforceable if signed by a minor. An “emancipated” minor may be able to do some things that an unemancipated minor can not.
  • It may not be necessary to have capacity to do the underlying thing before giving the authority to someone else. What? Let us explain: a person who might not have the capacity to enter into a complicated contract might still have sufficient capacity to sign a power of attorney giving someone else the power to sign the contract.
  • Arizona’s legislature has decided that the capacity level required to sign a trust should be the same as testamentary capacity, as we described last week. That may mean that someone who does not have sufficient capacity to sign a power of attorney could nonetheless sign a trust, which gives even broader authority to the trustee. Odd result, but mostly theoretical, as it’s hard to find someone in just that circumstance.
  • Generally speaking, most observers think that the capacity to sign a will is a lower level of competence than contractual or other forms of capacity. But it might not be that hard to describe someone who adequately understands the nature of a power of attorney but does not have an understanding at the level of testamentary capacity.
  • There are few legal ways to determine capacity in advance. Challenges to capacity are almost always initiated after the signing is completed — and often after the signer has died, or become completely and undeniably incompetent. That means that evidence of capacity (or lack of capacity) is often being reconstructed well after the fact.

It’s also important to remember that we are writing here about competence/capacity, and not necessarily about the validity of documents signed by someone with dementia. In response to our article last week, one reader wrote to us:

“You covered dementia issues very clearly. Thank you! But what about the issue of undue influence in the presence of known dementia where, in principle, the demented person otherwise possesses testamentary capacity? How does the mix of those two aspects play out?”

It’s a very good point. There is a difference between capacity (or competence) on the one hand, and undue influence on the other. Dementia might make a given signer incapable of signing a document, or their competence may be sufficient to sign. But that same person might be made more susceptible to undue influence because of their dementia.

What do we mean? Let’s give an example — drawn from our considerable experience with the distinction. An elderly widower, living alone, has a diagnosis of dementia. He is nonetheless charming, witty and perfectly able to discuss his wishes. He can recall the names of his three children, and of his seven grandchildren. He can report their ages, the cities they live in and their careers (or status as students) — and he is mostly correct, though sometimes his information is two or three years out of date.

This gentleman’s daughter lives in the same city, and is the one who oversees his living arrangements and care. She does his shopping, hires people to check on him daily, takes him to doctors’ appointments, writes out his checks (he still signs them) and otherwise helps out. She also talks to him endlessly about how his other two children don’t deserve to end up with his house and bank accounts, how she really ought to be the one who benefits from his estate, and how his late wife (her mother) always wanted her to inherit everything. Eventually he agrees to sign a new will and trust, mostly to stop her constant harangues.

Was he competent to sign the new estate planning documents? On the facts as we’ve given them here, probably yes. Was he unduly influenced? Very likely. Was that influence facilitated (and the proof made easier) because of his dementia? Absolutely.

When did the daughter’s behavior cross the line? The legal system isn’t actually very helpful, since the answer is defined in a circular fashion. Her influence was “undue” when it resulted in her wishes being substituted for his. It was not necessarily objectionable (at least not legally) when she told him what she wished he would do, what her mother had wanted, or what was fair. But at some point she may well have turned ordinary familial influence into “undue” influence.

We hope that helps explain this complicated and nuanced area of the law. But we want to leave you with a completely unrelated, but important, note: Kieran Hartley York joined the Fleming & Curti family (literally) on Sunday, March 3. We are delighted to have met the little guy, and look forward to great things from him in the future.

Can a Person With Dementia Sign Legal Documents?

FEBRUARY 25, 2013 VOLUME 20 NUMBER 8
Let’s get the answer to the question out of the way first, and then we can deal with more nuance. Yes, a person with dementia may be able to sign legal documents.

The inability to sign documents (what is usually known in the law as “incompetence” or, sometimes, “incapacity”) is a factual issue. In order to know whether a person is competent to sign, say, a power of attorney or a will, one must know what understanding the signer had at the time.

Capacity or competence are tested a little differently depending on what documents the person is signing. The most highly-developed law of capacity, unsurprisingly, centers on the level of understanding required to sign a will. That standard is almost universally referred to as “testamentary capacity.” Although precedent for defining testamentary capacity goes back at least to mid-sixteenth century England, the standard is occasionally restated or reformulated.

Arizona’s Supreme Court most recently reviewed testamentary capacity in 1973. In that case the Court described the woman who signed a will as:

“94 years old at the time she executed her will. She had very poor eyesight and was deaf in one ear and partially deaf in the other. As a result of previously broken hips, she used a “walker” to move around. Evidence shows that she was forgetful and did not remember the names of her great grandchildren. She spilled food when she ate and went to the bathroom frequently. She had a short attention span and it was difficult for some people to talk with her.”

The Court goes on to describe the three-part test for capacity to sign a will. A signer must have:

  1. the ability to know the nature and extent of one’s property,
  2. the ability to know the natural objects of one’s bounty, and
  3. the ability to understand the nature of the testamentary act.

Estate of Vermeersch, 109 Ariz. 125 (1973).

The standard of testamentary capacity, then, is quite low. Even people suffering from delusions or hallucinations have been found to have testamentary capacity. In an earlier Arizona Supreme Court case, the signer of a will had deteriorated markedly near the end of her life (and before her will was signed):

“during the last three years of her life she became coarse and profane. The testimony is to the effect that she shrieked and screamed at all hours of the day and night. That she mistreated her brother and cursed him, although he diligently performed his tasks around the house. That she became utterly careless in her dress, took to wearing very little clothing, rarely combed her hair or bathed, and on occasion was indecently exposed in the presence of neighborhood children. She stopped taking care of her house, stopped cooking, and ate from cans, although she fed her animals and chickens better food. She affirmed a belief in the ‘power of thought’ and practiced ‘black magic.’ She thought she could cast spells on people and tried to put a hex on the family next door so they would move out. She sat in the outhouse behind her home and watched the neighbors’ children from a peephole or stalked up and down along the fence between their property, glaring and gesturing to them and sticking out her tongue, in her efforts to get them to leave. She declared that the members of a church on the corner were praying for her to die so that they could acquire her property, when in fact, according to the minister, they wanted to move to another part of town. She was suspicious of people and built a fence around her house to ‘keep my enemies out’ and hung a padlock on the gate. In the last months before her death her conversation became incoherent and her mind wandered, she was forgetful and childish, and she seemed even more quarrelsome and ill-tempered than before.”

Despite that description, the will was found to be valid because the evidence did not specifically point to any relationship between her deteriorating mental condition and the terms of her will. Estate of Stitt, 93 Ariz. 302 (1963).

In yet another Arizona case, the will of a developmentally disabled man was upheld, even though he was said to function at about the mental level of a child of 10 or 12. Estate of Teel, 14 Ariz.App 371 (1971). In that case, the court quoted a standard legal text of the time for the proposition that “testamentary capacity is not the same as the ability to transact ordinary business.” That principle is still true today.

So can a person with dementia sign a will? Yes, so long as he or she can identify family, assets, and the purpose of making a will. A diagnosis of dementia may be evidence of some limitation in those abilities, but many demented individuals — particularly those early in the dementia process — can satisfy those minimal requirements.

What about other legal documents, like contracts, powers of attorney, deeds and the like? The answers will vary depending on the type of document, the circumstances of the signing and the nature and extent of the dementing condition. We’ll talk about those issues in a future installment.

Some Thoughts About Guardianship and Conservatorship in Arizona

NOVEMBER 14, 2011 VOLUME 18 NUMBER 39
Let’s talk about guardianship and conservatorship proceedings. Before we do, though, let’s remember a couple of important principles:

  1. We only know about Arizona guardianship or conservatorship. Well, OK — we might know a thing or two about other states’ rules and procedures — but we only practice in Arizona. Our observations are not universally applicable. They may not even be universally applicable inside Arizona’s borders.
  2. As always, we simply can’t give specific case-based legal advice here, and you should not rely on this newsletter (or anything you read online or in books) to resolve your case. This is big-picture stuff. We can and do write about how the system works, what the rules look like, and what you might expect if you are involved in a guardianship and/or conservatorship matter in Arizona. Don’t expect to print out our articles, take them to court and argue with the judge, though. She won’t appreciate it, and neither will we. Plus it won’t work. Get good legal advice.
  3. One thing we’ve learned from years of law practice: people think they understand their own cases, but they get blinded to the nuances (or maybe they aren’t told everything about the contrary evidence or opinions) and tend to overgeneralize. We don’t think that means they are stupid, or liars — they are just trying to put the best face on their case, and that’s human nature. But it also means that if you say “aha — he hit the nail on the head and that’s exactly what my worthless brother is trying to do” we’d be likely to tell you (if we were your lawyer): “slow down. It’s not that clear.”
  4. We have written a lot about guardianship and conservatorship. Here’s one of our better (and most comprehensive) articles, a White Paper on guardianship and conservatorship. But it’s a difficult and confusing topic, with lots of information — and misinformation — out there.

Disclaimers aside, let’s talk about guardianship and conservatorship. Let’s start with some definitions of terms.

In Arizona, the word “guardianship” is applied to the court proceedings instituted to acquire legal control over another human beings’ person. In general terms, a guardian is authorized by the court to make placement and health care decisions for that other human being. Not every state uses the same word. Not every state has the same process to get a guardian (or whatever they call the office) appointed. But every state does have some kind of court proceeding in which a person can be appointed to manage the health care and living arrangements of another person.

In Arizona, the word “conservatorship” is applied to the court proceedings instituted to acquire legal control over another human beings’ finances. A conservator usually is authorized by the court to handle checking accounts, real estate, brokerage accounts, businesses, vehicles, horses, airplanes, family photographs, oil and gas leases — you name it. Just to keep the confusion level high, not every state calls this type of court-appointed person a conservator — some, in fact, call them guardians. But in Arizona, the person managing property and finances is a conservator.

Neither guardians nor conservators are “powers of attorney.” In point of fact, powers of attorney are pieces of paper, not people at all. But now we quibble. The person named to manage your property and/or your person in a power of attorney is properly called your “agent” or your “attorney-in-fact.” A guardian or conservator is neither an agent nor an attorney-in-fact. They usually have authority over agents and attorneys-in-fact, though it may require separate court action to make that clear, and it may be possible for the court to determine that the agent (or attorney-in-fact, if you prefer hyphenated names) still has authority even after appointment of a guardian and/or conservator.

Who can have a guardian appointed? Someone who is incapacitated. Their incapacity can be based on their age (minors — those under age 18 — are automatically incapacitated under Arizona law unless they are “emancipated”) or their circumstances. Generally speaking, parents are the natural guardians of their minor children, so they do not need to go to court to secure guardianship. The same is not true for any class of adults. So if your 18-year-old child has a lifelong disability that makes him unable to make responsible decisions, you do not automatically shift from being his natural guardian at 17 to being his legal guardian at 18. A court proceeding is necessary. Same thing if your husband or wife becomes incapacitated — you may need court proceedings to become guardian (if there is no power of attorney and there are things that need to be taken care of). “Incapacity” for adults requires a court showing of (a) a mental, medical or other condition that (b) affects the ability of the person to make and communicate responsible personal decisions and (c) makes it difficult or impossible for them to provide their own food and shelter without assistance. It is also necessary to show that (d) the appointment of a guardian will actually help accomplish that goal.

Appointment of a conservator is based on similar, but slightly different, grounds. First, minority is always considered a legally disabling condition, but parents are not the natural conservators of their children in the way that they are natural guardians. That means if a minor child comes into money, even if they live with both parents and all are harmonious and responsible, there is no way to manage that money without going through the conservatorship process. If an adult becomes unable to manage their money in order to prevent its waste or dissipation, they may have a conservator appointed, as well. Frankly, the definition of when a conservator can be appointed is a great deal less precise than that for guardianships, which can sometimes lead to problems.

An important reality for family members and friends to understand: if a guardianship and/or conservatorship proceeding is initiated, the court has been invoked and will not later simply step aside to let concerned — even appropriately concerned — family members take over. Once the courts are involved, they tend to stay involved.

That means that the cost of securing guardianship and conservatorship can be high. In Arizona, a lawyer is automatically appointed to represent the person who is alleged to be in need of a guardian or conservator. A medical report is required. A court-appointed investigator must go to the residence, conduct an investigation and file a report. There are significant court costs involved. Plus the process is complicated enough that the petitioner is almost always going to hire an attorney. That attorney’s bill is likely to approach half the total cost of getting the guardianship or conservatorship set up.

Much has been written, spoken and broadcast in recent years about the high cost of guardianship and conservatorship. The natural tendency of the system has been to make it more difficult to get guardians and conservators appointed, and to require them to provide more information, more frequently. Though that may be a positive development, it has the (presumably unintended) effect of making the process not only more difficult, but also more expensive.

So — guardianship and conservatorship can be difficult, expensive, even ineffective. Not always, of course, but there is a possibility and it proves to be the case too often. What can beleaguered family members do?

Most lawyers practicing in the field spend the first portion of any contact with a new client talking about how to avoid guardianship and conservatorship proceedings. Did your family member sign a health care power of attorney, a financial power of attorney, a living will, a living trust? Are there other ways to get done what needs to be done? What bad things will happen if we (that is, the family and the lawyers acting together) simply do not file a guardianship or conservatorship proceeding, even if one is warranted? Are there ways to get agreement from all the family members in advance, in order to hold down legal costs?

One important concern, at least in the case of adult guardianship and conservatorship: we will ultimately need to be able to prove that your family member has a medical, mental, emotional or other problem that prevents them from making their own personal or financial decisions. We will need medical evidence. Have you spoken with your family member’s physician, or psychologist, or other member of their treatment team? Can you get a letter from that person describing diagnosis, prognosis and any functional limitations? Without that, we may not be able to proceed. With that in hand, though, the process may be significantly streamlined.

Getting guardianship or conservatorship can be expensive, emotionally wrenching, and sometimes even ultimately unsatisfying. Sometimes, however, it is absolutely necessary. We just need to be sure you are prepared for the cost, the procedures, the limitations, and the possibilities in this type of legal proceeding. That’s why you hire a lawyer, after all.

Trust Created by Spouse Using Power of Attorney is Validated

JUNE 14 , 2010 VOLUME 17, NUMBER 19

Suppose for a moment that you are trying to get your financial affairs in order. You have been married for many years, and your spouse is gradually losing the capacity to make financial or planning decisions. You are pretty sure you know what your spouse would want, but he (or she) is no longer able to articulate those wishes. Is there anything you can do?

That was the dilemma facing Ollie Phillips, an Indiana resident. His wife Donna no longer had capacity to sign estate planning documents — or to manage her own affairs if anything should happen to him. The couple had earlier signed durable powers of attorney naming one another as agents, and both had identical wills leaving everything to one another and, on the second death, to charity (Mr. and Mrs. Phillips had no children).

In early 2008, 18 months after Donna Phillips had been diagnosed as suffering from dementia, Ollie Phillips signed a new living trust and transferred all the couple’s assets into the trust’s name. The trust named Mr. Phillips as trustee and a friend, Elizabeth Shoemaker, as successor. It provided that all the couple’s money would be used for the benefit of Mr. and Mrs. Phillips until both had died and, after the surviving spouse’s death, everything would be transferred to Ms. Shoemaker. Mr. Phillips signed all of the documents using his wife’s power of attorney.

Did Ollie Phillips have the power to effectively change his wife’s estate plan using the power of attorney? The question would be moot if he had outlived his wife, but he did not — he died less than a year after setting up the trust.

Shortly after Mr. Phillips died, another friend was appointed as guardian of Mrs. Phillips’ person and estate. The new guardian moved to set aside the trust Mr. Phillips had created, but after two days of hearings the trial judge upheld the trust and ordered the guardianship estate to pay the trustee’s legal fees incurred in defending the trust itself.

The Indiana Court of Appeals agreed with the trial judge. Of particular interest to the appellate court was the evidence adduced at trial about Mrs. Phillips having told the lawyer who drafted the trust that Ms. Shoemaker was “like a daughter” to the couple. The judges also pointed out that Mrs. Phillips remained the sole beneficiary of the trust until her death, and that there was no evidence that the trust was being mismanaged in any way. Evidence that Mrs. Phillips had more recently said that she thought Ms. Shoemaker was “money hungry” was not sufficient to allow the guardian to revoke the trust. The appellate court also agreed that Ms. Shoemaker’s legal fees to defend the trust should be paid by Mrs. Phillips’ estate. Matter of Phillips, May 17, 2010.

Does the Phillips case stand for the proposition that an agent can change the principal’s estate plan using a power of attorney at any time? No, it certainly does not. But in a specific case, with some indication of the wishes of the now-incapacitated person, and with a broadly-drawn power of attorney, it might be possible to make at least some changes. Among the safeguards in this case: the fact that Mrs. Phillips, if she once again became able to make decisions, could change the trust, and the involvement of a lawyer who interviewed her and worked with her to try to figure out how much her capacity (and wishes) could be protected.

Video by Exploiters Leads to Witness Tampering Conviction

DECEMBER 21 , 2009  VOLUME 16, NUMBER 65

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.

Massachusetts High Court Limits Wards’ Right to Counsel

JULY 28, 2003 VOLUME 11, NUMBER 4

Is one who has been determined legally incapacitated and in need of a guardian able to revisit the court’s determination or challenge her guardian’s actions? Yes, wards may request the restoration of capacity and/or challenge the fitness of the guardian. In at least one state, however, wards are not entitled to legal representation unless a proceeding has been brought to terminate a guardianship or remove a guardian. Guardianship of Lon Hocker, July 10, 2003.

In August 1999, Priscilla Claman petitioned the Barnstable Division of the Family and Probate Court to be appointed permanent guardian of her 88 year-old father, Lon Hocker, Jr., who contested the need for a guardian. The court appointed attorney Kathy Pett Ryman to represent Mr. Hocker. After a trial the court found that Mr. Hocker suffered from multi-infarct dementia and was unable to care for himself by reason of mental illness. Ms. Claman was appointed to serve as guardian. The court admonished family members not to interfere with the guardian’s ability to implement a treatment plan for Mr. Hocker.

Over a year later the court vacated Ms. Ryman’s appointment as Mr. Hocker’s attorney. The next day, Ms. Ryman entered a notice of appearance on his behalf with no other pleading—she did not seek to remove the guardian or end the guardianship. Mr. Hocker’s guardian moved to strike the notice of appearance.

Ms. Ryman and the ward’s son opposed the guardian’s motion. After a hearing the court made note of Mr. Hocker’s diminished level of cognitive function and granted the guardian’s motion to prohibit Mr. Hocker’s attorney from appearing on his behalf. The judge, who seemed to think that the ward’s son was just trying to keep tabs on his sister, noted that any concerns about the guardian’s fitness could be addressed in an action to remove her pursuant to state statute. Ms. Ryman and the ward’s son appealed this ruling.

The Massachusetts high Court ruled that apart from an adversarial action “due process does not require that a ward be able to consult with counsel about his guardianship.” The Court emphasized, however, that the ward and his family members “remain free to challenge Claman’s fitness as guardian or the ward’s continued need for a permanent guardian …” Left unanswered was how he might accomplish that task without the aid of counsel.

In Arizona attorneys for wards (especially those with mental health issues) often have extended appointments. It is unlikely that a lawyer’s attempt to appear for even an incapacitated ward would be rejected.

Probate Court May Bypass Ward’s Choice Of Conservator

MAY 19, 2003 VOLUME 10, NUMBER 46

When a person is no longer able to manage his or her own affairs, it may be necessary for a court to appoint a guardian (of the person) or conservator (of the estate). Who should be appointed? In most states the courts start from the presumption that family members should serve—but the highest priority usually goes to the person selected by the incapacitated person. That is not always the way things turn out, however.

There are at least three ways an incapacitated person might have input on the selection of a guardian or conservator. Once a petition is filed an attorney, a court investigator or the court itself might ask the proposed ward who he or she prefers to have act as guardian and/or conservator. In some cases the ward might have expressed a preference well before the need ever arose. And in some states, simply signing a durable power of attorney is taken as a preference by the signer for who should be appointed if the need later arises.

All three standards applied to Karla Iwen, a Minnesota woman. She had named her son Heinz Iwen as her agent in a durable power of attorney, and had specifically included a request that he be appointed if a conservatorship was ever contemplated (at the time Minnesota used the term “conservatorship” to encompass both personal and financial matters, but has since adopted the same language used in Arizona–guardianship is over the person, conservatorship over the estate). She also told the court that she wanted Heinz appointed.

The reason the issue even came before the probate court was that her other son, Thomas, had filed a petition to be appointed as her conservator. He had watched her decline while living at home, and was concerned for her safety and welfare. He did not think his brother Heinz was taking good care of their mother, and he cited the presence of mouse droppings in her bedding, a dead mouse in her fireplace, and the fact that she could not climb the stairs to the only bathroom in her home.

At the conclusion of the all-day hearing on the brothers’ competing requests to be appointed, the judge decided instead to name Karl Bushmaker, an independent professional, as guardian and conservator. Heinz appealed, arguing that his mother’s choice should be given first priority. The Minnesota Court of Appeals agreed, but nonetheless upheld the appointment of a professional.

The priority given to the ward’s preference to serve as guardian and conservator is just a priority, ruled the appellate court, and not a guarantee. When the ward’s best interests require appointment of someone else, the probate court is permitted—and indeed required—to deviate from that priority. Evidence of the living conditions at Ms. Iwen’s home supported appointment of someone else. Matter of Iwen, May 6, 3003.

Arizona law agrees with the Minnesota result. Under the guardianship and conservatorship statutes in Arizona, the probate court is specifically instructed to consider the proposed ward’s choice of guardian and conservator, whether made in a document previously signed or by current statement of the ward. The court is, however, permitted to bypass the ward’s choice if it determines that doing so would be in the ward’s best interest. It is because of the Arizona statute that powers of attorney prepared by Fleming & Curti, PLC, usually include a provision nominating the agent to serve as guardian and/or conservator if it should ever become necessary to involve the court in the process of selecting or supervising a fiduciary.

Despite Dementia Diagnosis, Wyoming Man’s Will Is Valid

FEBRUARY 7, 2000 VOLUME 7, NUMBER 32

Two years before Erwin W. Schlueter died in 1997 at age 85, he had completed his estate planning. He had signed a will, a durable power of attorney for financial matters and a durable power of attorney for health care. When his relatives contested the validity of the will, they pointed to the powers of attorney as evidence that Mr. Schlueter knew he was already incompetent to make his own financial decisions.

Mr. Schlueter and his wife Frieda had watched neighbor Chris Bowers grow up, and they were particularly fond of him. In 1994, Mr. Schlueter even named the youngster as alternate agent in his power of attorney, to take effect if Frieda should die before him. Mr. Bowers was only seventeen years old at the time.

There was no doubt that Mr. Schlueter suffered from dementia at the time he executed his powers of attorney and (later) his will. His relatives asserted that the mere fact of the dementia diagnosis should be evidence of incapacity, and that they should be permitted to make the case for invalidating his will to a jury. In addition, they argued, when Mr. Schlueter signed the immediately effective power of attorney he tacitly admitted his own incapacity even before the will was signed.

Mr. Schlueter’s doctor and the witnesses to the will all agreed that he was confused, and that his short-term memory was poor. Mr. Bowers argued that the mere fact of a dementia diagnosis was not enough to get the case before a jury, and that the family had to show more specific evidence of lack of capacity.

Mr. Schlueter’s relatives pointed to the will itself. It identified his mother as his mother-in-law, and vice versa. It also described him as the “testatrix,” which would have made Mr. Schlueter a female. In response, Mr. Bowers submitted the affidavit of the secretary who prepared the wills for the Schlueters; she explained that she had prepared Mrs. Schlueter’s will first, and then switched names to make the identical will for Mr. Schlueter, and that the failure to switch “mother” and “mother-in-law” and to change “testatrix” to “testator” were her mistakes, not Mr. Schlueter’s.

The Wyoming Supreme Court reviewed the affidavits submitted and decided that there was insufficient evidence of incapacity to even submit the matter to a jury. The mistakes in the will, said the court, “demonstrate clerical carelessness rather than incapacity,” and the mere diagnosis of dementia did not preclude a finding that Mr. Schlueter had sufficient capacity to sign his will. Finally, granting a power of attorney, even an immediately effective power, can not be construed as an admission of incapacity. Estate of Schlueter, January 11, 2000.

©2014 Fleming & Curti, PLC