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Daughter Has Priority As Guardian Despite Conflicts

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Esther L.K., an elderly Wisconsin woman (Wisconsin courts help preserve anonymity by using initials rather than last names), needed a guardian. Her family members assumed they would be appointed, but the court instead appointed a private fiduciary organization, Legal Guardianship Services, Inc. Esther’s daughter Patricia A.M. (with support from her brothers and sisters) appealed the decision.

Wisconsin law directs the court to “take into consideration the opinions of the alleged incompetent and of the members of the family” in deciding who should be appointed as guardian. “However,” according to Wisconsin law, “the best interests of the proposed incompetent shall control in making the determination when the opinions of the family are in conflict with the clearly appropriate decision.”

Before appointing Legal Guardianship Services as Esther’s guardian, the trial judge had decided that her best interests required appointment of a non-family member. LGS had already been appointed conservator of Esther’s estate, apparently without objection from Patricia or the family.

The court’s decision was partly based on a history of conflicts between Esther’s daughter and the nursing home where she had been placed, and the court expressed concern that Patricia might seek to move her mother to a new nursing home out of the area. To make sure she stayed in the community where she grew up, ruled the judge, it was necessary to appoint an independent guardian.

All of Esther’s children agreed that Patricia should serve as guardian. Patricia herself noted that there was no proposal to move her mother from the nursing home, and that the court could limit her authority if that seemed necessary to ensure she stayed in the community.

The Wisconsin Court of Appeals agreed with Patricia and the family, holding that the mere threat of a conflict between the guardian and the nursing home was not sufficient to prevent appointment of Esther’s daughter. The decision was returned to the lower court, with instructions to consider whether Patricia’s actions had ever actually been contrary to Esther’s best interests; otherwise, the family’s opinion should be given strong consideration. Guardianship of Esther L.K., February 17, 2000.

In a law similar to the Wisconsin statute, Arizona instructs the court to “give preference for the appointment of a family member unless this is contrary to the expressed wishes of the incapacitated person or is not in his best interest as determined by the court.” In practice, this usually means family members will be appointed unless there is specific evidence of previous wrongdoing or inability to act.

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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.