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.
Linda G. Bauer, Ethical Issues for Elder Law Attorneys, at http://www.mass.gov/obcbbo/elder.htm
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.
Neb. Ethics Advisory Op. 71-5 (1971).
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.
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.
St. B. of S.D. Ethics Op. 92-13 (1992); see also, Fla. Atty. Gen. Op. 96-94 (November 20, 1996).
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.
N.Y. St. B. Assn. Comm. On Prof. Ethics, Ethics Op. 746(2001).
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.
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
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.
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.
In re Cynthia Schmidt, 699 N.E.2d 1123 (Ill. App. Ct. 1998).