Guardianship and conservatorship proceedings can be personally devastating to the proposed ward. The process can result in loss of dignity, autonomy and freedom. The subject of the proceedings should have legal advice; if they don’t already have a lawyer, a court-appointed attorney should be available.
That issue loomed large in a recent Iowa Court of Appeals decision. The case gives us a chance to briefly discuss the role of a court-appointed attorney.
Arizona law requires court-appointed attorney
Though the Iowa case obviously did not involve Arizona law, let’s start with a quick explanation about what happens in Arizona. Any petition seeking appointment of a fiduciary for an adult must indicate whether the proposed ward already has an attorney. If not, the court immediately appoints someone to represent the proposed ward. This occurs whether the petition is for a guardian or conservator.
The role of a court-appointed attorney is to represent the wishes of the proposed ward. It is not to tell the judge what might be in the ward’s best interests, or what the lawyer thinks would help protect his or her client. If the client objects to the guardianship or conservatorship, the court-appointed attorney must pursue that result.
Arizona law also permits the court to appoint a guardian ad litem in some cases. The guardian ad litem will make an investigation and tell the court what he or she thinks would be in the ward’s best interests. The guardian ad litem is usually (but not always) an attorney, but the two roles are very different.
The Iowa case
Last year the Polk County, Iowa, probate court received a petition for appointment of a guardian (of the person) and conservator (of the estate) for a 70-year-old veteran living in the Des Moines area. The court appointed local attorney Hope Wood to represent the proposed ward, and scheduled a hearing.
Ms. Wood apparently decided that her client needed a guardian and conservator, and she filed a report with the court indicating as much. Although her client objected to having anyone appointed, she did not represent that position before the probate judge. She did not suggest limiting the guardian/conservator’s authority.
After the probate judge appointed a guardian and conservator (without any limitations), Ms. Wood appealed on behalf of her client. On appeal, she argued that the probate judge should have appointed only a limited guardian and conservator.
The role of a court-appointed attorney
Though no one had raised the question, the Iowa Court of Appeals ruled that the probate court proceedings were defective. Because Ms. Wood had acted as a guardian ad litem rather than as an attorney, the ward’s rights were violated.
According to the appellate court, the role of a court-appointed attorney is clear. Citing Iowa statutes, the court ruled that an attorney should interview the proposed ward, and also make sure that they understand their rights. The lawyer should explain the proceedings, but represent his or her client’s wishes. In Iowa a court-appointed attorney must file a written report, but only to show that the legal requirements have been met. Ms. Wood should not have told the judge what she thought was in her client’s best interests.
The Court of Appeals, on its own motion, decided that the order appointing a guardian and conservator was deficient. It reversed the order and remanded the proceedings to the probate court. At a new hearing, the court-appointed attorney will represent the proposed ward’s wishes. Matter of the Guardianship and Conservatorship of Fagan, November 8, 2017.
The persistence of confusion
There is a long history of problems with lawyers understanding their roles as court-appointed attorney. When Arizona adopted the appointment of counsel rule in 1974, we got our language from the Uniform Probate Code. That law even said that the court-appointed attorney would have “all the powers and duties of a guardian ad litem.” Though that language was changed after a few years, confusion continued.
To be clear, not every state requires appointment of an attorney in guardianship and conservatorship proceedings. A number of states permit the court to appoint a lawyer upon request, but do not require it in every case. A few states do not require an attorney for the proposed ward at all.
Where it is required, the court-appointed attorney provides an important element in guardianship and conservatorship proceedings. A lawyer can marshal evidence, focus arguments and try to persuade the probate judge. That means the lawyer is also in a good position to explain what would be best, but that is not his or her role.
