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Due Process in Guardianship Proceeding

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Due process in Texas

It’s easy to observe that the subject of a guardianship (or conservatorship) petition has a right to “due process” during the court process. But what does that mean? Does it include anything a judge orders? Does it require a court hearing? How will you know if you have been afforded due process before a guardianship order is entered?

Guardianship in Texas

Texas, for instance, has guardianship/conservatorship statutes designed to protect due process rights for the subject of court proceedings. When a guardianship is filed, the court will appoint what it calls an “attorney ad litem.” This is different from a “guardian ad litem,” a much-maligned term in use in many other states (including, at least occasionally, Arizona).

Texas’ language is different from other states, but the idea is consistent. In order to make sure the subject of a guardianship proceeding gets legal representation, an attorney is appointed for the duration of the guardianship proceeding. Arizona, along with most other states, has a similar approach.

But that court appointment does not mean that the subject of a guardianship proceeding is required to use that lawyer. Normally, even a person alleged to be incapacitated or in need of protection can select their own attorney.

That’s just what happened in the case of Eleanor King (we’ve changed her name here), a 74-year-old Texas woman. Her daughter Cynthia filed a petition alleging that Eleanor was no longer capable of handling her own finances. Cynthia identified her mother’s usual lawyer, and asked the court to appoint him as attorney ad litem.

Normally, the subject of a guardianship or conservatorship petition also has the right to be evaluated by a doctor, psychologist or other professional of their own choice, as well. The court may order a separate evaluation, but usually only after a finding that there is some need for a new review or second opinion.

Texas, incidentally, uses “guardianship of the estate” to describe what we in Arizona would call “conservatorship.” The principles, though, are the same.

The trial judge’s actions

Once Eleanor saw her daughter’s petition, she wanted to select her own lawyer and have her own evaluation. She hired Scott Scherr (of Bryan, Texas) to represent her. The two of them then arranged for evaluations by both a psychiatrist and a neurologist.

Eleanor’s daughter then filed a motion to force Eleanor to submit to a second examination. Judge Eric Thomas Berg set a hearing on her request. A psychologist testified, and was cross-examined by Eleanor’s lawyer. Then Cynthia took the stand to begin her testimony; her lawyer asked about her mother’s behavior, and then turned the questioning over to Mr. Scherr, Eleanor’s selected attorney.

Partway through the cross-examination, Judge Berg announced that it was after 5:00 p.m., and the court’s air conditioning was off (it was a July Monday in southeast Texas). He announced that the hearing would begin again a week later, on Monday morning.

Instead of re-starting the hearing a week later, however, Judge Berg simply cancelled the remaining hearing. He asked the two lawyers to identify possible geriatric psychiatrists to conduct an evaluation of Eleanor. Attorney Scherr objected, and filed a request with the Texas Court of Appeals to reverse Judge Berg’s order.

Eleanor’s attorney disqualified

While the appellate court was considering the question, Judge Berg threw another wrench into the works. There was no doubt that Eleanor had chosen her own attorney. Still, Judge Berg entered a second order, on his own motion, disqualifying the lawyer from further involvement in the case. He also ordered Eleanor’s attorney to return any funds he had received.

The basis for the Judge’s disqualification of Mr. Scherr? Texas courts maintain a list of attorneys who can be appointed as attorney ad litem, based on their having undergone training for the task. Eleanor’s chosen attorney was not on that list.

On behalf of Eleanor, her court-appointed attorney ad litem took up the challenge. He continued the earlier request before the Court of Appeals, and filed a new one in connection with Judge Berg’s order disqualifying Mr. Scherr. His argument: the judge had no business deciding who Eleanor could choose as her lawyer, and could not order a new medical evaluation without having heard all the evidence about whether it was needed.

Appellate court insists on due process

The Texas Court of Appeals last week agreed with Eleanor’s attorneys. Yes, she was entitled to due process in the guardianship proceedings. And yes, that meant she could select her own attorney and her own medical evaluators.

The appellate court noted that Judge Berg should not have ordered her to undergo another medical evaluation without first hearing evidence about why the earlier one might be questionable or inadequate. Interrupting the hearing before Eleanor’s lawyers could complete their cross-examination of her daughter and her witnesses denied Eleanor due process. So, too, did Judge Berg’s order entered without giving Eleanor and her attorneys to put on any evidence at all.

Similarly, the judge’s reliance on the Texas training for court-appointed attorneys ad litem was misplaced. While Mr. Scherr might not have been eligible for the court to appoint him as attorney ad litem, he had been retained by Eleanor herself. Generally, due process requires that the subject of a guardianship petition be allowed to choose her own legal counsel. In re Kelm, November 20, 2018.

Due process in Arizona

Would the same result occur in Arizona? Probably.

Due process is a requirement in all U.S. court proceedings, state or federal. The same principles cited by the Texas Court of Appeals should apply in Arizona and every other state.

The Texas court noted that even if due process did not require reversal of Judge Berg’s orders, Texas law would. Arizona law is, of course, different — but the principles are pretty similar. So an Arizona court would likely come to the same conclusion.

Quite aside from court requirements and federal notions of due process, Eleanor’s appeal seems to have been correctly decided. In order to assure confidence in court proceedings, and to protect against too-quick actions by family members, it makes sense to give the subjects of guardianship/conservatorship proceedings much latitude in selecting their own lawyers and evaluators. It is not just good law, but also good practice.

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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.