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Concerned Sister Permitted to Intervene in Guardianship Proceeding

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Concerned sister

JUNE 20, 2016 VOLUME 23 NUMBER 23
Suppose your sister is developmentally disabled, and your brother has been appointed as her guardian, to make medical, placement and other decisions. Suppose your brother has moved her to a facility you aren’t sure about, and has restricted family access to visit her. Can you do anything to question his decisions as a guardian?

In Arizona, at least, the answer would be straightforward. Any interested person can appear in a guardianship or conservatorship proceeding, and siblings would clearly qualify.

That doesn’t mean that your concerns would necessarily be resolved. The probate judge might ultimately decide that your brother was behaving appropriately, and your efforts might be ineffective. But you would have the opportunity to be heard, and you probably would be able to get access to medical and other records necessary to make your pitch — within reason. Oh, it’s worth noting that you also would have to pay a court filing fee, and that you would be held to the same standards regulating other litigants — no frivolous filings, no wild accusations, no inflammatory pleadings. But you would have the opportunity to be heard.

That isn’t always true in every circumstance or in every state. But you can now add one more state to the list in which you probably have the ability to get involved.

Jacqui Swensen (not her real name) is the concerned sister in our story. Her sister Tamara lives in Ohio, and is in her fifties. Tamara lived at home with the sisters’ parents until they could no longer care for her; in 2013 Tamara’s brother Jeff and sister Charlene were appointed as guardians. Tamara now lives in a group home near where she lived for most of her life.

Altogether there are nine surviving Swensen children, and they live all over the country — except for Tamara, Jeff and Charlene, who all stayed in Ohio. The other siblings visit frequently, have Tamara visit in their homes from time to time, and remain actively involved, even though Jeff and Charlene have been the ones with legal authority as the guardians.

When Tamara moved from her family home to the group home, Jeff limited visits from family members and Tamara’s travel to their homes. He explained that he wanted to help ease the transition into the group home, but several of the siblings became concerned. He did permit Tamara to visit her siblings, though — including a trip to Jacqui’s home after the move-in had been completed.

While Tamara visited her, Jacqui became concerned about her health — both physical and mental. She had a persistent rash, and was not handling her grooming well. Jacqui also expressed concern about her mental health; that concern was echoed by another sister, who reported that during her visit Tamara had several crying episodes.

Jeff followed up on the rash, and it was ultimately found to be scabies. He also undertook to review other care issues with the group home, and to respond to his siblings’ concerns. By this time, though, family communication was tense.

Jacqui filed a request with the probate court for review of the guardianship, and some months later (after a failed attempt at mediation) the court held four days of hearings. All the siblings were permitted to spell out their concerns and introduce evidence. At the conclusion of the hearings, the court ruled that Jeff could continue as guardian and ordered a set visitation schedule.

Jacqui filed an appeal, but Jeff objected. She was not actually a party to the proceedings, he argued, and so didn’t have any right to appeal.

The Ohio Court of Appeals dealt with the question of Jacqui’s standing to appeal. First, the appellate court noted that Jeff’s point was well-taken: if Jacqui was not a party, she could not appeal the decision. But the probate court was wrong, ruled the judges, to deny Jacqui’s request to formally intervene in the guardianship in the first instance.

Though Jacqui and the other siblings had been permitted to participate, to call witnesses and cross-examine Jeff’s witnesses, the probate judge had not granted her formal status as an intervening party. That, said the Court of Appeals, was a mistake. Partly because of the unique nature of guardianship proceedings, the interest of a sibling in monitoring the care and welfare of a person in Tamara’s position should militate in favor of allowing them to intervene. Guardianship of Sweeney, June 2, 2016.

It is important to note that the appellate court expressly did not agree with Jacqui’s objections to the probate court’s rulings on the merits. Jeff’s guardianship was confirmed, and his authority to regulate Tamara’s care was reinforced. The visitation schedule remained in effect, as well. But Jacqui now clearly has the legal authority to intervene in her sister’s guardianship, and assurance that her views will be heard.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.