Close this search box.

Court: “Massive Curtailment of Liberty” in Guardianship Cases

Print Article

APRIL 21, 2008  VOLUME 15, NUMBER 43

We apologize. We like to think that we bring you the most interesting, useful and thought-provoking elder law cases, news stories and trends each week. Somehow we completely missed a great case last year. With thanks to our friend Prof. Rebecca Morgan for calling it to our attention, we will now attempt to remedy the oversight.

The actual holding of the Oklahoma Supreme Court in Matter of the Guardianship of Holly (June 26, 2007) may not be that powerful, but the language is. The issue was fairly simple: Danny Holly, a 58-year-old head-injured man whose daughter had been appointed as his limited guardian, wanted to hire his own attorney. He already had a firm representing him, and in fact he had chosen them four years earlier. But now he wanted to change lawyers.

The problem was that Mr. Holly’s guardianship (of his estate — what in Arizona would be called a conservatorship) was worth several million dollars, and everyone seems to have been concerned that he not be allowed to interrupt its administration by changing attorneys. They also expressed concern that he might be subject to undue influence by his new lawyers or others. His daughter and her lawyers agreed.

Mr. Holly’s judge scheduled a hearing on his request for new counsel. At that hearing the lawyers all argued about what should happen, but neither Mr. Holly nor anyone else gave sworn testimony. At one point the Judge said “I see no reason to swear in all of the attorneys. You are all officers of the Court.” Then he ruled that Mr. Holly could not change lawyers.

The Oklahoma Supreme Court eloquently and forcefully disagreed. The statements of counsel did not amount to evidence, ruled the Justices. “Unsworn, in-court statements by attorneys acting as advocates are not evidence,” the Justices noted.

Oklahoma law gives a ward the power to select his or her own attorney. Failure to allow Mr. Holly that right was reversible error, according to the state’s high court. Could that lead, as the guardian and the existing attorneys claimed, to a messy court proceeding? Perhaps, but “messiness has never been a valid reason for dispensing with one’s fundamental rights,” wrote the Justices. “Indeed, it is often a hallmark of the assertion of those rights.”

The Oklahoma court places its judicial finger squarely on the issue. Citing what it called the “massive curtailment of liberty” inherent in guardianship proceedings, the court opined that even after the appointment of a guardian “the proceedings must continue to be conducted with the utmost care to ensure that the ward subject to that curtailment receives due process.”

We feel better now, having shared this powerful appellate decision with you, our readers. We hope you forgive us the delay in getting it to you, and that you appreciate it as much as we do. We even hope many of our readers will have an opportunity to cite its language one day in a guardianship or conservatorship proceeding.

Would the same result (perhaps even the same strong language) obtain in Arizona proceedings? Likely. Arizona law is not quite as explicit about the right to select counsel, but in practice guardianship judges — and especially appellate judges — should be expected to fiercely protect the ward’s right to select counsel. If, on the other hand, there is actual evidence of undue influence, improper self-dealing or conflicts of interest, or other strong reasons to overcome the presumption in favor of the ward’s ability to select his or her own attorney, the result in individual cases might be different. Participants should start, however, with the assumption that the ward’s selection of his or her own attorney will be given effect.

Stay up to date

Subscribe to our Newsletter to get our takes on some of the situations families, seniors, and individuals with disabilities find themselves in. These posts help guide you in the decision making process and point out helpful tips and nuances to take advantage of. Enter your email below to have our entries sent directly to your inbox!

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.