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Guardians Control Care Decisions, But Authority Is Not Absolute

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A Texas probate judge appointed Frederick and Lorraine Cooper (see note below) as guardian of their adult developmentally disabled daughter Cathy in 2003. Three years later, Cathy moved into a group home in Grapevine, Texas. After Cathy had lived there for about two years, the group home operator became concerned about what it saw as her deteriorating mental health.

Why was the group home operator concerned? There were several reasons. Cathy had developed a set of imaginary friends, and the group home staff thought she was spending more and more of her time in conversation with them. She had become occasionally violent — once striking another resident who she thought was sitting in her seat on the group home’s bus. She had started to set traps for the staff, like lining marbles up under the edge of the door to her bedroom. She also was found to have as many as four screwdrivers hidden around her room — wedged into a closet, stashed behind her dresser and in her jewelry box.

The group home took the issue up with Cathy’s guardians — her parents. The parents did not feel that Cathy’s behavior was troubling, and they refused to permit the group home to set up a psychiatric evaluation. After the group home arranged a prescription for Zoloft for Cathy, the parents ordered that the medication be discontinued. They also continued to bring in over-the-counter medications for Cathy, insisting that her only medical problem was persistent headaches which could be treated without a doctor’s involvement.

In a meeting with Cathy’s parents, the group home insisted that they should not discontinue medication, that they could not bring non-prescription medications to Cathy without notifying the nurse on duty (and getting her approval), and that they needed to stop supplying their daughter with screwdrivers. Cathy’s parents pointed out that they were their daughter’s guardian, and that they were in charge of medical and personal decisions for her. They refused consent for a psychiatric evaluation, declined to cooperate with the group home over the over-the-counter treatments, and indicated that they saw no problem with Cathy’s attachment to screwdrivers and booby traps. They insisted that she just felt like she needed to have the screwdrivers to protect herself, and that if the staff would stop bothering her she wouldn’t feel like she needed to booby-trap the doorway to her room.

The group home arranged to get information about Cathy’s parents’ decisions before the probate judge who had appointed them as guardians. Without notice to them or a hearing on the information, the judge removed them as guardians and appointed a professional guardian in their stead. The Coopers did not appeal or seek review of that decision, but they did file a motion for reinstatement as guardians. After a hearing, the probate judge declined to reappoint them, and they appealed to the Texas Court of Appeals.

The appellate court agreed with the probate judge that the Coopers had failed to show that they should be reappointed as guardian for their daughter. The Court of Appeals noted that the Coopers not only did not express concern over their daughter’s behaviors, they assisted her by letting her take screwdrivers back to the group home after visits to their home. Although the Coopers had sought out evaluations by an allergist, an acupuncturist, a neurologist and a chiropractor, they had refused to have her tested or treated by a psychiatrist — because, they said, they were sure that the result would be that she was put on medication, and they wanted her headaches treated first. For all those reasons, the appellate court let stand the probate judge’s refusal to reinstate the Coopers as guardian. In re Covington, February 9, 2012.

The Coopers apparently felt that, as their daughter’s guardian, they were completely in control of medical and personal decisions for her. They were right, as far as that goes. But that control was not absolute. The ultimate authority in such a circumstance rests not with the family or guardian, but with the probate court overseeing the guardianship proceeding. The result of the court proceedings would likely have been the same under Arizona law in similar facts.

A word about names: For 19 years now, we have reported on cases with full and accurate names included. We have felt that having names humanizes the stories we relate, and those names are readily available in the reported cases in any event. But we are rethinking our position as the internet makes it easier and easier to look up personal information about anyone. A simple internet search for the name of an adult incapacitated person, or a family member of such a person, can expose their personal affairs to heightened scrutiny. Since we agree that the names are not really important to the story, we are trying an experiment with this week’s newsletter. We have changed the names of the principals, primarily to keep the actual names from appearing after an internet search for someone who, like “Cathy” here, is to some extent a victim of the public reporting system inherent in court cases.

If it is important for any of our readers to know “Cathy’s” real name, it is not that difficult to find it — in the same place we originally found it. From time to time, though, we will expect to modify the names of the subjects of legal proceedings and their families.

In the past we have also used full and formal names for the subjects of our reporting; we would have called Cathy Cooper “Ms. Cooper.” Since we are not actually using her real name here, we have decided to make her story more readable by referring to her as simply “Cathy.” We hope you understand; feel free to tell us whether you agree or disagree with either part of our decision.

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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.