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Conservator Properly Appointed for Missing Homeless Man

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Late in 2012, Mark West was driving a car that struck and injured Don Barnes (both names have been changed) in the Phoenix area. Barnes hired an attorney to sue West, but because the attorney was unsure of Barnes’ ability to understand the proceedings, he sought appointment of a “guardian ad litem to represent Barnes’ interests in the lawsuit.

The guardian ad litem had a hard time staying in touch with Barnes, and eventually decided it was necessary to seek court appointment of a conservator for Barnes’ estate — which consisted solely of the personal injury lawsuit. Arizona law provides for appointment of a conservator for someone who has disappeared, and so a proceeding was initiated.

West (the driver), through his attorneys, objected to the conservatorship. He noted that Barnes was mentally ill and homeless, that he had claimed to be from Montana, and that he appeared to have returned to that state — or somewhere else. Barnes had criminal citations in six different states over the years, and West’s attorneys insisted that he had no significant connection to Arizona.

The probate court disagreed, and appointed a conservator for Barnes. West appealed that order (technically, he filed what the courts call a “special action,” but that’s a distinction that only lawyers find interesting).

The Arizona Court of Appeals agreed to address the question, but upheld the appointment of a conservator for Barnes. The statute permits appointment of a conservator for someone who has “disappeared,” ruled the appellate judges, and the plain meaning of “disappear” includes a situation when someone used to be in Arizona and now can’t be found.

Conservatorship proceedings are supposed to be initiated in the subject’s home state or, if they do not have a home state, in a state with significant connections to the person. The facts that Barnes was in Arizona when he was injured, and that he has a lawsuit pending in the state now, amount to significant connections with Arizona. Furthermore, he hired an attorney in Arizona before he disappeared, and he has a sister living in the state.

The Court of Appeals ruling clarifies that a conservatorship (of the estate) can be initiated in Arizona even if the subject has disappeared — in fact, the disappearance is the basis for a conservatorship in a case like this one. Woestman v. Hon. Russell, July 28, 2015. Could the same logic allow appointment of a guardian for a missing person? Probably not, since “disappearance” is not itself a ground for appointment of a guardian (of the person).

There are also procedural problems with both conservatorship and guardianship over someone who can not be located — though the problems would be much more challenging in the case of a guardianship. The process requires appointment of a court investigator, who is supposed to interview the subject of the proceedings and visit the place where they would reside.

There is a potential exception to that requirement for conservatorships based on disappearance (or, interestingly, “detention by a foreign power”), but conventional practice still includes appointment of an investigator. Similarly, a medical evaluation is customarily required (though the court may skip the medical review). Obviously, it may be impossible for either an investigator or a medical expert to evaluate a missing person.

One other legal point arose in West’s challenge of the conservatorship: Barnes’ attorney argued that he had no standing to even participate in the probate proceeding. Both the trial judge and the appellate court agreed, however, that West was an “interested person” because he had a potential claim for court costs if Barnes’ lawsuit ultimately failed. That permitted him to raise procedural objections to the conservatorship proceeding.

How often are conservatorships required for missing persons (as opposed to people who have become incapable of handling their affairs because of mental health issues, or dementia)? Rarely, but still more commonly than you might think. In addition to homeless people who may be difficult to trace (and who may have financial assets), there are also crime victims who may have business interests to manage while their whereabouts are unknown. Not infrequently, of course, the “missing” person may reappear even as the proceedings are underway.

One Response

  1. The standing argument seems like a real stretch. West–most likely, his insurer– wanted no conservator so he could get the case dismissed.

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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.

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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.