Posted on February 10, 2010 by Alexander D. Nirenstein

Guardianship: Improving the Well-Being of Respondents and Wards

Check out  this recent article by Wright, Jennifer L., "Guardianship for Your Own Good: Improving the Well-Being of Respondents and Wards" (2010). U of St. Thomas Legal Studies Research Paper No. 10-09.  Very insightful.

In her article, Ms. Wright argues that the guardianship system as a whole must be reformed to maximize the therapeutic effects of guardianship and to minimize the unnecessarily anti-therapeutic effects. She examines the effects of guardianship from a therapeutic jurisprudence perspective and proposes and analyzes modifications that could enhance the therapeutic effects of guardianship.

Abstract:  Adult guardianship is a coercive exercise of the state’s power over an innocent individual, justified only by: 1) the ward’s incapacity; and 2) the need to protect the ward’s well being. The raison d’être of guardianship is thus to improve the well being of the incapacitated ward. Studies of actual guardianship proceedings have long indicated serious ongoing concerns with the process. Repeated revisions of statutes have attempted to improve guardianship procedures, with some success. However, relatively little attention has been paid to the actual effect of guardianship on the well being of respondents and wards, when the system functions as intended. The presumption that guardianship, when not abused, is in the best interests of an incapacitated adult is called into serious question by empirical research into the role of internal locus of control and autonomy on human well being. Indeed, a wide range of data indicates that guardianship itself can have significant negative effects on the physical and mental well being of respondents and wards. The guardianship system must be reformed to maximize the therapeutic effects of guardianship and to minimize the unnecessarily anti-therapeutic effects. I examine the effects of guardianship from a therapeutic jurisprudence perspective and propose and analyze modifications that could enhance the therapeutic effects of guardianship.
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Posted on January 19, 2010 by Leslie Satterlee

Treading Lightly: The Private Fiduciary's Role

When there is internal family quarreling over who gets to act as the guardian of or conservator for Mom or Dad, it is not unusual for the court to appoint a neutral, third-party private fiduciary.  A private fiduciary is a person or entity, who for a fee, serves as a court appointed guardian and/or conservator for the ward and is unrelated to the ward.  In Arizona, a “guardian” is responsible for the protection of the incapacitated person (called the “ward”) and a “conservator” is responsible for the finances or estate.  Private fiduciaries in Arizona are licensed through the Arizona Supreme Court, see Arizona Private Fiduciaries. 

Unfortunately, inner-family fighting does not necessarily end once a private fiduciary is appointed.

When someone is found to be incapacitated and in need of a guardian and/or conservator many actors come into play.  There is the ward (incapacitated person), and court appointed counsel for the ward.  Generally if the ward cannot meaningfully communicate his/her intentions, court appointed counsel will ask leave of the court to serve as the guardian ad litem , (sometimes called the “best interests attorney”).  However, a separate guardian ad litem may also be appointed by the court to  recommend what course of action is in the ward’s best interest.  Typically, private fiduciaries are “for-profit” entities.  One quandary facing private fiduciaries is protecting the interests of the ward  while responding to the numerous pleadings and in-fighting that may continue even after their appointment. 

Thus in contested matters, the ward’s estate is likely paying the fees for his/her attorney, the fees for the guardian/conservator, the fees for the attorney for the guardian/ conservator, and possibly other experts.  With so many parties the costs of a guardianship and conservatorship can be quite costly. The problems are compounded when there is inner-family fighting over what is best for the ward and the ward’s estate.  The private fiduciary may be compelled to respond to the numerous pleadings and cross pleadings filed by interested parties.   

The court will generally not restrict the filing of motions or pleadings by warring family members for fear of missing substantive complaints.     
 
So, what is a private fiduciary to do to try and keep costs down?  Here are a few suggestions for private fiduciaries:

  • Seek approval from the court to participate in Alternative Dispute Resolution (ADR) or mediation.  Although initially expensive, removing the formality of litigation and seeking consensus amongst family members as to how future complaints may be heard without court intervention can be productive and reduce costs;
  • Seek the appointment of a third party special master to hear and decide smaller issues;
  • In extreme cases, consider filing for Rule 11 sanctions against frivolous claims;
     
  • Consider asking the court to award attorney’s fees in any contested action upon “clear and convincing evidence that the claim or defense constitutes harassment, is groundless and is not made in good faith”, pursuant to A.R.S.§12-341.01; although this needs to be cautiously applied, for the ward may be furthering the litigation and in-fighting.   

Since the private fiduciary’s goal is to preserve the estate as much as possible, trying to find balance to hear the concerns of the ward and family members, can be a treacherous undertaking.   It is not unusual for the private fiduciary to become the target of the family’s anger and frustration. 

If you have any questions regarding guardianships or conservatorships, or representation of private fiduciaries, please contact the probate & elder law attorneys at Nirenstein Garnice Soderquist PLC.
 

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