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.
In 1999 the Platte County, Missouri, courts appointed a guardian of the person and conservator of the estate for Linda Werner. Because of her schizophrenia and her resulting difficulty in making responsible decisions the court decided that Janet Waddell, the county’s “public administrator,” should handle Ms. Werner’s personal and financial affairs. By 2002, however, Ms. Werner was doing much better, and she thought it was time to terminate the legal proceedings.
When Ms. Werner asked the court to end the guardianship and conservatorship, the public administrator agreed—partially. Ms. Waddell indicated that she agreed Ms. Werner could handle her own finances. She also agreed that Ms. Werner had improved enough that she should be allowed to vote, and to drive a vehicle. She disagreed, however, with terminating the guardianship altogether.
The Platte County court heard testimony from friends and acquaintances of Ms. Werner, and from a new doctor who had been treating Ms. Werner. The second physician diagnosed her as suffering from depression, rather than the schizophrenia diagnosed at her first hearing by her original doctor.
Several of the witnesses agreed Ms. Werner was doing much better at providing for herself than had been the case at the original hearing. The judge agreed that she should be permitted to take back control of her own finances and that she should be allowed to vote and drive, but continued the appointment of a guardian for all other purposes.
Ms. Werner appealed, arguing that there had been no evidence at the court hearing that she still needed a guardian. The Missouri Court of Appeals upheld the continuation of her guardianship because, said the court, the issue was not whether there was evidence of a continuing need for guardianship—it was whether Ms. Werner had produced sufficient evidence that the guardianship should be terminated.
Because the hearing was on Ms. Werner’s petition to end the guardianship, said the appellate court, she had the burden of proving her case. Although she produced evidence supporting her position, the evidence was not uncontradicted, and the trial judge may have simply not been persuaded. Even if her new physician’s diagnosis of depression was correct, that did not prove that she would continue to do well without a guardian. Ms. Werner’s guardianship continues, though limited. Estate of Werner, February 3, 2004.
Ms. Werner’s case is interesting to Arizona guardianship practitioners for several reasons. In addition to addressing the burden of proof issue, it also introduces the Missouri office of “public administrator,” which is roughly equivalent to Arizona’s “public fiduciary.”
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.
Occasionally a successful and colorful will contest is profiled in Elder Law Issues. EL Issues reported in 1996 that Dorothy Killen’s will was deemed invalid in an Arizona court due to Ms. Killen’s “’insane delusions’” about her truly kind relatives she believed to be Mafia killers. (May 27, 1996) And, last year EL Issues described how the Mississippi attorney who prepared “Doc” Evans’ will could offer no testimony about his client’s wishes or capacity since the attorney had never met his client. “Doc” Evans’ will was held to be invalid because it appeared that he was unduly influenced by a friend involved in his business affairs. (Dec. 2, 2002)
The Wisconsin will contest of Horlacher v. Drexler is far more typical of the majority of will contests — it was unsuccessful and fueled by dark family dysfunction.
Zoura Drexler of Walworth County, Wisconsin, properly executed a will that left her entire estate to one of her children and specifically excluded her only other child. The trial court found that Mrs. Drexler had mental capacity and that she had not been subjected to undue influence when she signed the will.
Barbara Horlacher, the excluded child, appealed the trial court’s ruling regarding her mother’s capacity. Mrs. Drexler’s physicians, the attorney who drafted her will, a neighbor and her cleaning lady had all testified that Mrs. Drexler was competent to sign her will.
The only evidence that Barbara presented at trial was the testimony of a medical expert who reviewed the medical records but who had never examined, treated or met Mrs. Drexler. Barbara also challenged the trial court’s finding that Albert, the son who inherited the estate, had not exercised undue influence over his mother. The appellate court affirmed the trial court’s finding that although Albert had a “confidential relationship” with his mother based on the fact that he was named as agent in her financial power of attorney, he used the power “very, very carefully, very scrupulously, very infrequently and for very minor matters.” Thus, no suspicious circumstances surrounded the confidential relationship between Albert and his mother. Although Barbara attempted to introduce into evidence Albert’s psychiatric treatment records, this evidence was deemed inadmissible for lack of relevance. Wisconsin Court of Appeals, District II, May 7, 2003.
Horlacher v. Drexler reminds us that family members influence each other frequently, and that not all influence is undue or “overpowering.” This scenario likely would have led to the same result in Arizona and most other states.
When someone appearing in a court proceeding is unable to make decisions for himself or herself, the court may sometimes appoint a guardian ad litem. Lawyers usually shorten the appointee’s title to GAL. The need for a GAL and the GAL’s proper role have been topics of controversy in a number of cases.
Most jurisdictions draw a clear distinction between a GAL (who may or may not be a lawyer, depending on the court’s wishes and local laws and practice) and an attorney for the ward, minor or disabled person. Generally, the GAL’s role is to make decisions for the person. An attorney’s role, on the other hand, would be to represent the client, to counsel him or her, and to assist in producing witnesses and evidence if he or she wishes to take a particular position.
GALs are most often appointed in guardianship and conservatorship proceedings. In civil litigation involving a minor or disabled adult, or even in divorce proceedings where one spouse is mentally disabled, a GAL may be appointed to make decisions about the course of the case.
Because courts tend to be paternalistic toward children and the mentally disabled, the appointment of a GAL may be almost routine in many types of cases. As a recent California case pointed out, however, a judge needs to follow proper procedures even when taking steps to protect a litigant.
Kim S. is the grandmother of four-year-old Joann E. (the court does not provide last names in this juvenile proceeding) and her guardian. When the state decided that Kim’s mental illness made it impossible for her to properly raise Joann, a juvenile proceeding was initiated to remove Joann.
Because of Kim’s obvious mental illness, the juvenile judge decided to appoint a GAL to make decisions for her in connection with the juvenile proceedings. The appointment was made without a hearing, any testimony or an opportunity for Kim to be heard as to whether she needed a GAL.
After a different judge removed Joann from Kim’s care Kim appealed. One of her arguments was that the judge had no right to appoint a GAL without first holding a hearing and giving her a chance to object.
The California Court of Appeal agreed. Because it appeared that the judge simply decided, based on the written reports, that someone other than Kim should be in charge of her case, Kim’s due process rights were violated. Since Kim’s rights were abridged at the outset, the entire process thereafter was suspect, and the trial court must restart the juvenile proceedings. In re Joann E., December 16, 2002.
Ralph Blakely, Jr., signed himself in to a mental health treatment facility for the first time in 1972. Despite treatment he received from time to time over the next quarter century, he continued to suffer from delusions, hallucinations and impaired memory.
Mr. Blakely married in 1973. He and his wife Yolanda owned various businesses over the years, including a dairy farm, an orchard, and other properties. He apparently continued to live a tumultuous life; by 1995 the couple had been involved in over 60 lawsuits. Partly to protect their assets from possible creditors the Blakelys created a trust to hold title to most of their property.
In 1995 Mr. Blakely’s legal troubles began to escalate. First his wife filed for a dissolution of their marriage. A year later the trustee of the trust which the couple had created asked the court to compel Mrs. Blakely to account for her use of trust assets; she argued that Mr. Blakely, his father and son were liable for any shortages.
Mr. Blakely elected to represent himself in the trust and dissolution actions. About three weeks before the trust trial, however, he was arrested for kidnapping his wife and son, and he went to jail pending a trial on those charges.
The attorneys appointed to represent Mr. Blakely in his criminal trial asked the court in the trust and dissolution actions to appoint a guardian ad litem (usually referred to as a “GAL”) in those proceedings. The GAL would be able, they argued, to determine what would be in Mr. Blakely’s best interests, and to manage the litigation without exposing him to further criminal problems. Although the court initially denied the request a local attorney was ultimately appointed to serve as guardian ad litem.
The trust case was the first of Mr. Blakely’s three legal problems to be resolved. His GAL helped negotiate a resolution of the claims and counterclaims, and the court approved the settlement.
Next Mr. Blakely faced the criminal charges arising from his having kidnapped his wife and son. A jury heard that matter and decided that his mental condition was not so serious as to prevent him from participating in own trial. Armed with that finding Mr. Blakely asked that his GAL be dismissed in the trust and dissolution matters so that he could once again represent himself. Those requests were denied and he appealed.
The Washington Court of Appeals upheld the lower court’s determination that Mr. Blakely needed a GAL to make decisions in his best interests. Court rules allow for appointment of a GAL when a litigant is unable to understand the significance of legal proceedings. A full hearing on the request was not required since he did not object until after the appointment. Marriage of Blakely and Blakely, April 25, 2002.
Lawyers who represent mentally impaired clients often wonder: is the lawyer’s duty to advocate the client’s wishes, no matter how peculiar, or to act in the client’s best interests? That was the dilemma facing New Hampshire attorney Tony Soltani after his client was committed to a mental hospital.
Richard A. (his full name is withheld in the official court proceedings) was the subject of a commitment proceeding. Evidence at his trial indicated that he was severely psychotic. He believed that the FBI had implanted monitors and transmitters in his body, and he threatened to swallow coins in order to force medical personnel to x-ray him—which he hoped would reveal the implants. More distressingly, he barricaded himself in a room with a hatchet and refused treatment.
Richard A. was represented by a court-appointed attorney. The attorney made his best arguments, but the evidence was strong and the trial judge committed Richard A. to the New Hampshire Hospital for up to one year of treatment. Richard A. instructed his lawyer to appeal.
The lawyer’s dilemma was immediately clear. In his view there was no basis for an appeal, and lawyers’ ethical rules prohibit filing frivolous actions. The lawyer could not follow both his client’s wishes and the rules governing the profession.
A similar problem often arises in criminal cases when a defendant has been convicted and insists on an appeal. In a 1967 case arising in California the U.S. Supreme Court decided that the defendant’s right to an appeal was more important than the lawyer’s ethical limitations, and authorized the filing of a so-called “Anders” brief—in which the lawyer lists all the possible arguments the defendant might have made without arguing that the appeal should be granted. Richard A.’s attorney suggested that maybe he should be directed to take a similar approach.
The New Hampshire Supreme Court decided that Richard A.’s attorney must first try to dissuade him from appealing his commitment. If that is unsuccessful, however, the lawyer is permitted to file an appeal without arguing for reversal, similar to the criminal rules governing Anders briefs. The Court noted that it might summarily dismiss any appeal if it decided the appeal lacked merit. In re Richard A., April 18, 2001.
The case of Richard A. points to ethical problems faced by lawyers for the mentally impaired every day. It can be difficult to balance the client’s wishes with his or her legal interests, and following instructions can sometimes be harmful to the client. Generally speaking, the lawyer’s duty is to represent the client’s wishes. The lawyer’s job can be challenging in such a case; Richard A.’s case at least recognizes that challenge, even if does not resolve it.
In 1980, a non-profit group in Cleveland, Ohio, applied for federal funds to renovate a former Franciscan Monastery. Our Lady of Angels Apartments, Inc., used the money to turn the former monastery into housing for the elderly and disabled. A decade later, Our Lady of Angels was sued by a prospective tenant over allegations that they did not provide housing for the mentally ill.
Our Lady of Angels made the conversion into housing for the elderly under the National Housing Act of 1959. That law set up federal loan programs to encourage development of housing projects. When Our Lady of Angels first proposed what became known as Franciscan Village, it planned to “provide housing and appropriate support service to persons over sixty-two years of age or physically handicapped.” The loan was approved, and the conversion was completed.
In 1988, Congress adopted amendments to the Fair Housing Act. Those amendments prohibit discrimination on the basis of handicap, regardless of the nature of the handicap. Some advocates have argued that the Fair Housing Act Amendments of 1988 require programs like Franciscan Village to accept all disabled applicants, regardless of the nature of the disability.
Also in 1988, Roseanne Beckert applied to be put on the waiting list for Franciscan Village. She indicated that she was disabled, but did not describe her disability. When an opening developed in 1993, Ms. Beckert filled out the formal application, indicating that her disability was a “mental-schizo” condition, and that she was being treated with medication. Our Lady of Angels determined that she was neither elderly nor physically handicapped, and declined her application to reside at Franciscan Village.
Ms. Beckert sued, claiming that the Fair Housing Act Amendments prohibited Our Lady of Angels from choosing to accept only applicants with certain kinds of disabilities. In response, Our Lady of Angels pointed to its federal loan application, which specifically noted that it did not possess the skills or resources to handle the mentally ill or developmentally disabled. Nothing in the new law adopted in 1988, argued Our Lady of Angels, required that they begin accepting handicapped applicants of all ages, regardless of the nature of their disability.
The Federal District Court in Cleveland agreed with Our Lady of Angels, and dismissed Ms. Beckert’s lawsuit. She appealed to the Sixth Circuit Court of Appeals, but the appellate judges also agreed with Our Lady of Angels’ arguments. Ms. Beckert will not be entitled to move into a federally-funded housing program designed for the elderly and physically disabled. Beckert v. Our Lady of Angels Apartments, Inc., Sept. 27, 1999.
Winifred Branning lives in Sangamon County, Illinois. She has been determined to be incapacitated, and so a guardian has been appointed to make medical decisions for her.
In February of 1996, Ms. Branning’s physicians recommended that she receive electroconvulsive therapy (ECT) as treatment of her psychiatric illness. The guardian, Gwendolyn Lewis, agreed with the physicians and wanted to approve the treatment.
Illinois law provides that a competent patient may refuse consent to ECT (or to “any unusual, hazardous, or experimental services or psychosurgery”). When a guardian has been appointed, according to the same Illinois statute:
“[the] guardian is authorized, only with the approval of the court, to provide informed consent for participation of the ward in any such services which the guardian deems to be in the best interests of the ward.”
Ms. Lewis, following the statute’s dictates, petitioned the court for approval of the treatment. The court appointed an attorney to represent Ms. Branning, and conducted a hearing less than two weeks after her petition. After the hearing (at which Ms. Branning’s attorney unsuccessfully sought the appointment of an independent psychiatrist to evaluate her need for ECT), the court ordered that the guardian could consent to the treatment.
Ms. Branning’s attorney appealed, and the order authorizing ECT was temporarily canceled pending resolution of the appeal. Meanwhile, Ms. Branning was discharged from the psychiatric hospital on March 12, less than a month after the first request for ECT, and the question of whether ECT should be administered technically became moot.
Notwithstanding the fact that Ms. Branning was already released from treatment, the Illinois Court of Appeals decided that the procedure used to gain court approval of her proposed treatment was unconstitutional. Noting that patients have a right to refuse treatment even after a guardianship (unless it can be shown that they in fact lack capacity), the court said that there was insufficient evidence of her lack of understanding to permit the guardian to override her objections. Furthermore, Ms. Branning was entitled to an independent evaluation and a meaningful hearing, at which she must have the assistance of a capable advocate (though not necessarily an attorney).
The appellate court specifically rejected the notion that Ms. Branning’s guardianship hearing itself gave her an opportunity to object to possible treatment. The court noted that wards customarily do not attend hearings, and that (at least in Illinois) a guardian ad litem or lawyer is seldom appointed. Finally, the court noted with some satisfaction that Ms. Branning was in fact released from treatment without ECT, apparently without compromising her care. In re Branning, Illinois Appeals Court, Fourth District, December 18, 1996.
Arizona’s law would likely provide a vastly different result from the Branning case. Arizona has no specific statute requiring any special approval for ECT, psychosurgery or administration of psychotropic medications. In fact, the only Arizona statute dealing with ECT forbids the Division of Developmental Disabilities from administering or approving ECT as treatment for its developmentally disabled clients.
In fact, the common practice in Arizona is for guardians to consent to ECT where appropriate, without any court involvement or approval. While ECT remains a rarely used treatment, it usually does not involve any additional legal or procedural safeguards, other than informed consent from the patient or her guardian.
It is notoriously difficult to prove a Will invalid under Arizona law. Contestants have the burden of proving that the decedent either did not understand what he or she was doing, or else was unduly influenced by someone (usually the beneficiary of the Will) to execute the Will. In nearly every case, however, the Courts have ultimately upheld the validity of a properly executed Will, regardless of the circumstances surrounding its preparation.
In 1988, Phoenix resident Dorothy Killen signed a new Will. Her nephew Marion McCannon was visiting from Missouri, and shortly after his arrival she decided she wanted to make some changes.
Mr. McCannon took his aunt for a drive, looking for a lawyer to prepare her new Will. Apparently, the two simply drove around her Phoenix neighborhood, stopping at lawyers’ offices; on the third try, they found an attorney available to talk to Ms. Killen.
Attorney Frank Collins talked to Ms. Killen for over an hour, then prepared the Will she requested. The next day, Mr. McCannon and his wife took Ms. Killen back to Collins’ office to sign the Will, and the lawyer summoned witnesses from the office next door. Neither Collins nor the witnesses had ever had any prior dealings with McCannon or Killen, and the lawyers’ conversations with Ms. Killen were outside the presence of Mr. and Mrs. McCannon.
The new Will signed by Ms. Killen left most of her estate to Mr. McCannon, after providing for a small trust for her sister. Ms. Killen left only one dollar each to three other nieces and nephews with whom she had previously been close.
Five years later, after Ms. Killen’s death, McCannon submitted her 1988 Will to probate in Maricopa County. The three disinherited nieces and nephews objected, arguing that the Will was the product of Ms. Killen’s mental illness and resulting “insane delusions.”
At trial, the contestants produced the testimony of a psychiatrist who had evaluated Ms. Killen just eight days before she signed her Will. At that time, Dr. Vinod Patel diagnosed her as suffering from a delusional paranoid disorder, evidenced by her belief that her nephews and niece lived in her attic, “sprinkled chemicals and parasites down on her, put put her to sleep and then pulled a tooth out and cut her arms and hands with glass, were in the Mafia, and were trying to kill her so they could take her property.” In fact, her nephews and niece were providing good care for her.
Ms. Killen’s mental illness had caused her to have delusions about others as well. Prior to her husband’s death in 1985, she had firmly believed that he, too, was “in the mob” as well as trying to poison her food. Furthermore, another psychiatrist testified that her condition had continued until his evaluation of her in late 1989, almost two years after she signed her Will.
In order for a Will to be valid, the signer must be able to understand the nature and purpose of the Will, recognize relatives and others who might benefit from the estate, and have some general understanding of the nature and extent of her assets. Ms. Killen met all these tests, but her Will was nonetheless invalid. The court ruled that her paranoid delusions so interfered with her ability to perceive the true nature of her relatives that she lacked capacity to make a Will, and the Court of Appeals agreed. Consequently, her estate was divided into equal shares among all her nieces and nephews. M.I.Marshall & Isley Trust v. McCannon, AZ. Ct. App., April 18, 1996.
