7. In the Professions

In the Professions

A. Guardianship Attorneys

Case 7.1: Representing client’s guardian

Description

Attorney Jane Brown has represented William Morriston, partly in estate planning, for more than 30 years. Recently, Mr. Morriston's daughter, Melissa, contacted Ms. Brown with her concern that her father is becoming incapacitated. Ms. Morriston also believes that Mr. Morriston's friend and caretaker, Judy, is exerting undue influence over him. Ms. Morriston wants Ms. Brown’s help in protecting her father as his capacity lessens and as Judy’s influence potentially grows.

Ms. Morriston wants Ms. Brown, if necessary, to have her appointed as her father’s guardian. This would require Ms. Brown to represent Ms. Morriston, while Mr. Morriston is still her client.

Shortly after this conversation with Ms. Morriston, Ms. Brown received a letter from an attorney. The letter included a form discharging her from her duties as Mr. Morriston attorney and was signed by Mr. Morriston himself. The new attorney, Don Carting, told Ms. Brown to turn over Mr. Morriston files and not to contact him.

Source

Linda G. Bauer, Ethical Issues for Elder Law Attorneys, at http://www.mass.gov/obcbbo/elder.htm

Questions for Discussion

  1. What constitutes a conflict of interest or commitment is of great interest to scholars of legal professionalism. Relationships are often complex, and vague cases are as common as clear-cut cases. Are Ms. Brown’s relationships with Ms. and Mr. Morriston inappropriate?
  2. As a matter of fact, can Ms. Brown adequately fulfill her roles as father’s guardian and daughter’s attorney? Why or why not?
  3. Do Bar rules say anything about such relationships?

Case 7.2: Prior representation of the ward

Description

An attorney had previously represented an elder in a number of minor legal matters. As the client became less able to handle her affairs, the attorney, representing a daughter of the client as petitioner, petitioned to establish a guardianship naming a bank as guardian of the property and an individual as guardian of the person.

The guardianship was established and the attorney represented both guardians. All parties were aware of the attorney’s representation of the ward before guardianship, as well as his representation of both guardians.

The same daughter later retained other counsel and petitioned for the removal of the guardian of the person, alleging that he was unfit to serve in that capacity. The guardianship attorney was uncertain as to whether or not he should continue representation of the guardian of the person in light of the circumstances. The opinion of the ethics advisory committee was that the guardianship attorney should discontinue representation at this time.

Source

Neb. Ethics Advisory Op. 71-5 (1971).

Questions for Discussion

  1. How does this case differ from the previous case?
  2. In the absence of clear rules – or even clear intuitions – about the best way to proceed, what do you think about the ethical advice always to err on the side of caution? In this case, such advice would lead to the discontinuation of representation for one or both clients. If only one were discontinued, which should it be?

Case 7.3: Disclosure of fee petition

Description

Ward was an abrasive person who, before his incapacity, alienated those with whom he had relationships. He had no friends or adult family members, with the exception of one adult daughter who reluctantly sought and obtained guardianship. The daughter’s reluctance was presumably a result of the ward’s behavior and the fact that she and the ward were estranged.

As guardian, the daughter experienced much difficulty providing care for his person and managing his property. For example, the ward was been aggressive, mean, non-compliant and verbally abusive to the guardian and to caregivers arranged for by the guardian. Moreover, he refused to permit the guardian to sell a custom motorcycle despite the need to obtain funds to pay for his health care. In providing for the ward’s needs, the guardian had to miss time from work and suffered a significant drop in income.

The daughter was being reimbursed from the ward’s assets for reasonable expenses – but not without argument; the ward would, for instance, accuse his guardian-daughter of committing “highway robbery.” Because of her drop in income, the guardian recently petitioned for an award of guardian’s fees in addition to reimbursement of expenses.

The guardian is at the end of her rope and cannot cope with the ward accusing her of “evil motivations” in the guardianship, particularly since she is working hard and missing time from work and her own children.

The ward lacks capacity to understand and manage his finances, but the attorney for the ward is confident that the ward will throw a fit and “fire additional abuse” at the guardian if he learns of the petition for guardian fees. The ward’s attorney is certain that disclosure of the fee petition to the ward will cause a battle and leave the “high-maintenance, low-asset ward to public guardianship, which will likely fall short of his needs.” The disclosure could also have the effect of driving the guardian away, thus cutting him off from contact with his only family member.

Source

Anonymous.

Questions for Discussion

  1. Does the ward’s attorney have a legal or moral duty to disclose the fee petition to the ward? What if the ward has been declared totally incapacitated? How about if only the ward’s right to manage his finances has been removed?
  2. Should the attorney’s concern for the ward’s physical and mental wellbeing outweigh any obligation he might have to disclose the fee petition to the client? What arguments could be offered in support of each position?

Case 7.4: Duty to disclose misconduct

Description

The attorney for the guardian assisted the guardian in the preparation of a court-required initial inventory. This inventory indicated that the ward’s property was in disarray and disrepair and that considerable additional work was required to restore the estate to an orderly condition. The court was asked to approve expenditure of funds for the rehabilitation effort as well as the payment of a monthly salary to the guardian. Although the court did not enter an order affirming the initial inventory (or apparently approving the proposed expenditure and salary request), the attorney believed that the court had given its tacit approval to the inventory and on that basis advised the guardian that she could proceed with the rehabilitation effort.

Upon examination of records, the attorney determined that the guardian had misappropriated a significant amount of money from the ward. The court thereafter requested that the attorney make a full disclosure of all property transactions made by the guardian. The attorney disclosed this information to the court, and the court turned the information over to the State Attorney’s Office.

The Bar ethics committee opined that full disclosure to the court was appropriate and permissible because the disclosure was necessary to address the guardian’s misconduct.

Source

St. B. of S.D. Ethics Op. 92-13 (1992); see also, Fla. Atty. Gen. Op. 96-94 (November 20, 1996).

Questions for Discussion

  1. Attorney-client privilege is a cornerstone of our legal system. Exceptions must always be carefully justified. Was the court correct in requesting the disclosure? Why or why not?
  2. Was the attorney correct in obeying the order? Why or why not?
  3. Attorneys for guardians have a complex relationship to guardians’ wards. How should such dual agency – and the duties which follow from it – be managed in cases in which the interests of guardian and ward diverge?

Case 7.5: Attorney-in-fact as guardian

Description

An attorney who had been named attorney-in-fact in his client’s durable power of attorney and who later determined that his client was no longer competent to handle his affairs sought an advisory ethics opinion to determine whether or not he could petition for appointment as guardian. The attorney also inquired as to whether he could represent himself in the proceeding in which a court authorizes payment of attorneys’ fees from guardianship assets.

The New York State Bar Association’s Committee on Professional Ethics concluded that the attorney should not petition for appointment of guardian without the client’s consent unless the attorney determined that the client is incapacitated, that there is no practical alternative through use of the power of attorney or otherwise to protect the client’s best interest, and that no one else is available to serve as petitioner.

The committee further concluded that subject to conflict of interest restrictions, the attorney may represent himself in the proceeding as long as the client does not oppose the petition and the attorney will not be a witness.

Source

N.Y. St. B. Assn. Comm. On Prof. Ethics, Ethics Op. 746(2001).

Questions for Discussion

  1. Attorney-in-fact … holding durable power of attorney … petitioning for guardianship … and representing himself. Sorting out such roles is difficult. Yet because the relationships are complex, it is not clear precisely where a conflict of interest might lie. What do you think – is there a conflict of interest?
  2. What alternatives does the attorney have if he wants to extricate himself from this tangle of relationships with a single person?

Case 7.6: Attorney selected, employed by insurer

Description

An insurance company negotiated a settlement with the natural guardian of a minor who had been injured by a client of the insurance company. With the consent of the natural guardian, the insurance company selected and employed an attorney to represent the guardian in commencing the guardianship proceedings and obtaining court approval of the settlement. The attorney disclosed to the court his relationship to the insurance company, and the court denied the right of the attorney to appear on behalf of the guardian.

A bar association ethics committee concluded that the attorney violated a rule prohibiting attorneys from representing conflicting interests. The committee further concluded that while an exception exists to permit an attorney to represent conflicting interests if they all consent to the arrangement after full disclosure, such an exception cannot be invoked to permit an attorney to represent both the plaintiff and the defendant in an adversary proceeding, nor could it permit an attorney to represent a fiduciary when the fiduciary’s acceptance of the conflicting interest would constitute a breach of the fiduciary’s duty.

Despite its conclusions, the committee stated that it would not be improper for the insurance company to agree to reimburse the guardian for legal fees incurred by the guardian in connection with the proceeding when the selection and employment of the attorney is entirely within the discretion of the guardian.

Source

Colo. B. Assn. Formal Ethics Op. 23 (1962; addendum issued 1995).http://www.cobar.org/group/display.cfm?genid=1742"> http://www.cobar.org/group/display.cfm?genid=1742

Questions for Discussion

  1. In this conflict of interest case, an ethics advisory board appears prepared to permit a dual relationship as long as competing parties agree to it. Is such consent adequate to prevent or mitigate a conflict?
  2. One can imagine that the insurance company might contend it is being helpful, if not magnanimous. Under what circumstances might competing parties agree to an arrangement of the sort described here?

B. Guardians

Case 7.7: HIPAA and a failure to communicate

Description

An emergency temporary guardian was appointed for a gravely ill patient in a critical care unit. A copy of the letters of emergency temporary guardianship was placed in the patient’s chart and with the hospital’s risk management department. Letters of plenary guardianship were later issued and faxed to the hospital.

While on her way to a Family Court “status conference,” the guardian called the hospital to inquire about the ward’s status. The first ICU nurse whom the guardian spoke with told the guardian that the ward was in critical condition. When the guardian asked if the ward was in a coma, the nurse said that she could not disclose any more information by phone.

The guardian then spoke with the charge nurse and advised the nurse that she had been appointed plenary guardian and needed to report shortly to a judge. The charge nurse said that she could not disclose any information over the phone and, moreover, refused to speak with the judge.

The guardian asked if the refusal to communicate was motivated by an interpretation of the HIPAA Privacy Rule, and the charge nurse said it was.

Source

Anonymous

Questions for Discussion

  1. What level of caller authentication should be required before disclosing information on the phone? How can the failure to communicate described in this case have been prevented?
  2. Does HIPAA actually prevent disclosure of “protected health information” in such cases?
  3. Many hospital staffers are ignorant of the duties and powers of guardians. What can be done to help nurses, physicians and administrators have a better understanding of the challenges faced by guardians?

C. Judges

Case 7.8: Competing petitions for appointment

Description

Cynthia Schmidt was in a car accident in which she suffered a severe head trauma. Her brother petitioned for their sister, Sheryl Strack, to be appointed her guardian. Ms. Schmidt’s husband, Thomas Schmidt, filed a counter-petition to be appointed his wife’s guardian.

The trial court found Ms. Schmidt to be disabled and appointed her husband as her plenary guardian. The court ordered that her family be notified 72 hours in advance of any private decision to withdraw life-sustaining treatment. The court also ordered that Ms. Strack be given reasonable access to her sister’s medical records, but it did not give her authority to make medical decisions for her sister.

Mr. Schmidt contended it was in his wife’s best interest that her medical records stay confidential, but he allowed his sister-in-law, a nursing student, to see the records. Mr. Schmidt also said his wife would not wish to be kept alive by artificial means and that she would not want to live in a vegetative state.

Ms. Schmidt’s mother said her daughter would want everyone to care for her and continue the care she was getting, but that she would not want to live on life support. She based this on conversations she had with her daughter. Ms. Schmidt’s aunt and a woman she had a close relationship with, said Ms. Schmidt had once said she would not like to live if unable to speak or otherwise communicate. Several of Ms. Schmidt’s family members had asked her to communicate with them by closing or blinking her eyes. Ms. Strack, the sister and proposed guardian, said Mr. Schmidt was trying to end his wife’s life prematurely.

Each side relied on different medical reports regarding Ms. Schmidt’s condition. One physician advised that she was in a severe vegetative state and that he did not anticipate recovery, whereas another doctor gave a more optimistic view, which Ms. Schmidt’s siblings relied on. However, while that doctor said Ms. Schmidt might improve, her failure to do so after two weeks would be a strong indication she would not recover.

Mr. Schmidt argued that his wife’s close relatives prefer her sister, Ms. Strack as guardian; only Ms. Schmidt’s minor daughter and her husband supported the appointment of Mr. Schmidt.

The trial court appointed Mr. Schmidt as guardian of his wife’s person and estate. The appellate court affirmed.

Source

In re Cynthia Schmidt, 699 N.E.2d 1123 (Ill. App. Ct. 1998).

Questions for Discussion

  1. What is the best way to resolve conflicting views on an incompetent person’s medical condition?
  2. When a family is divided over health care decision making for a loved one, whose view should be given the most weight? (Compare the order of proxies in most state statutes.)
  3. Here, the court gave Ms. Schmidt’s husband and sister access to her medical records. Medical records are very private documents. Should both parties have been allowed such access? If not, which should have access to the records?
  4. What should be done when family members believe a court-appointed guardian/family member does not know the ward’s beliefs or will not follow them? How can the requirements of substituted judgment be met when those best positioned to meet those requirements are in disagreement?
  5. Should the number of family members supporting one guardian over another matter? Should the “closeness” of the family members to the ward matter?