Lawyer For Proposed Ward Must Advocate Client’s Wishes


At age 61 Sonny Lee is living at the College View Nursing Home in Frederick, Maryland. A little over two years ago Mr. Lee, a lifelong alcoholic, passed out in a public park, was hospitalized and ultimately placed in the nursing home. In recent months his condition has improved somewhat, but his daughter and one son are engaged in a court battle over whether a guardian should be appointed to make Mr. Lee’s medical decisions, and if so who should be named.

In 1993 Mr. Lee signed a power of attorney giving his daughter Sonya authority to handle his financial affairs. After his condition worsened, Sonya Lee decided that she needed the court’s involvement in handling her father. She later testified that she reached this conclusion after her father appeared at his bank in the company of other family members and incoherently attempted to withdraw money from his accounts.

When Sonya Lee filed her guardianship petition an attorney was automatically appointed to represent her father. That attorney visited Mr. Lee several times, talked to other family members, and filed a report with the court. She reported that Mr. Lee’s best interests would be served by appointing a guardian and conservator (in Maryland the latter is a “guardian of the estate”). Although there were disputes in the family, she said, Sonya Lee was best qualified to serve as guardian and conservator.

Shannon Lee, one of Mr. Lee’s sons, disagreed. He maintained that his sister had already taken advantage of their father, and she should not be appointed. In fact, he argued, Mr. Lee did not really need a guardian at all, but he wanted to tell the court what he thought should happen with his own future.

Mr. Lee’s appointed lawyer, however, refused to permit him to testify, citing the negative effect it would have on Mr. Lee to have to take sides between his children in a formal court proceeding. The judge agreed, and refused to accept any testimony on whether Mr. Lee needed a guardian in the first place—that issue, said the judge, was resolved when Mr. Lee’s attorney agreed that appointment of a guardian and conservator was necessary.

After Sonya Lee was appointed as her father’s guardian her brother appealed. His father’s constitutional rights were abridged, he argued, when the appointed lawyer failed to advocate for Mr. Lee’s wishes. The Maryland Court of Special Appeals agreed.

The appellate court also directed the trial judge to hold a meaningful hearing on Mr. Lee’s need for guardianship, and to take medical testimony about his condition. The doctors’ reports filed with the original petition, said the court, were nine months old, failed to provide even minimal information, and simply concluded that Mr. Lee needed a guardian. In re Lee, June 28, 2000.

In Arizona the process would probably have proceeded quite differently. Although court-appointed attorneys in Pima County (Tucson) were expected to file a report and recommendations for the “best interests” of their clients at one time, since the mid-80s they have been taught to advocate for their clients’ wishes. In other words if Mr. Lee had wanted to testify in an Arizona court, his lawyer would have taken whatever steps were necessary to give him the opportunity to be heard. In fact, the appointed lawyer would have almost certainly have argued that no guardianship was necessary, and insisted on testimony from doctors, social workers and others familiar with Mr. Lee’s history and circumstances.

The reports from Mr. Lee’s physicians would also have been different in Arizona, or at least in the two larger counties. Both Phoenix and Tucson courts require detailed information from physicians before granting a request for guardianship or conservatorship, and it is unlikely that the cursory reports submitted in Maryland would suffice.

Even with Arizona’s relatively enlightened approach to guardianship and conservatorship, however, the proceedings tend to be paternalistic and the wishes of potential wards are often dismissed as misguided or impractical. Although lawyers and courts almost always have the ward’s best interests at heart, the system often fails to pay enough attention to the very subjects it seeks to protect. At least now Maryland proceedings will move toward greater respect for the wishes and autonomy of incapacitated adults.

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