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Lawyer, Ward Both Entitled To Be At Guardianship Hearing

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APRIL 27, 1998 VOLUME 5, NUMBER 43

Guardianship and conservatorship can be an expensive and wrenching process for the ward and family. No one understands that better than Letty Milstein and her children.

Ms. Milstein lives in Denver. In early 1996, her daughter decided that Ms. Milstein was no longer able to manage her own affairs and filed a guardianship and conservatorship proceeding in the Colorado courts. Ms. Milstein’s lawyer objected, and the proceeding became a contest.

While the contested proceedings were being scheduled, the Colorado court appointed a temporary guardian and conservator for Ms. Milstein. Nine months after the initial filing, Ms. Milstein’s lawyer filed a “Petition for Guidance” with the court, alleging that Ms. Milstein was no longer capable of participating in the proceedings in a meaningful way. After reading the petition, the judge assigned to the case appointed another lawyer as Ms. Milstein’s “Guardian ad litem” to serve “in lieu of counsel” and effectively removed her own attorney from the case.

Ms. Milstein’s contested guardianship hearing was scheduled for June 3, 1997. Twelve days before that date, the judge in the case went to Ms. Milstein’s home and visited her, with the guardian ad litem and a psychiatric expert witness present but without an attorney for Ms. Milstein. Based on that interview, the judge determined that Ms. Milstein was incompetent and ruled that she could not attend the hearing.

A few days before the hearing, two lawyers attempted to appear on behalf of Ms. Milstein. The judge, relying on her earlier in-home interview, decided that Ms. Milstein did not have the capacity to hire an attorney, and therefore refused to permit the lawyers to appear. In fact, when the two lawyers showed up for the June 3 hearing they were denied admittance to the courtroom.

When the judge appointed a permanent guardian and conservator for Ms. Milstein, both she and her son John appealed the ruling. They both argued that Ms. Milstein had been deprived of her constitutional right to have a lawyer represent her, and that she was absolutely entitled to be present at the hearing herself. The newly-appointed guardian and the guardian ad litem both objected, first arguing that John Milstein had no business asserting his mother’s interests, and that she lacked capacity to make the arguments for herself.

The Colorado Court of Appeals ruled that John Milstein was an interested person and had the right to participate in his mother’s case. Furthermore, Ms Milstein herself had the right to be represented, and the judge’s determination that she could not hire an attorney was overruled.

The court also held that Ms. Milstein had an absolute right to attend the hearing on her own guardianship, and that she had the right to be represented at that hearing by an attorney. A guardianad litem, noted the appellate court, is different from legal counsel even if the guardian ad litem is actually a lawyer. The purpose of a guardian ad litem is to make decisions about the pending litigation for the ward, while the role of an attorney for the ward is to advocate for her wishes.

Most troubling to the Court was the judge’s in-home interview of Ms. Milstein. Ms. Milstein was not then represented by an attorney, and the interview itself was the basis for the judge’s ultimate decision to appoint a guardian and conservator. As a result of these errors, the Court of Appeals reversed all orders entered by the judge after Ms. Milstein’s lawyer was removed and replaced with a guardian ad litem.

Arizona law would probably have avoided the particular problems encountered in Ms. Milstein’s case. In Arizona, an attorney is always appointed to represent the wishes of a proposed ward; Arizona ended the practice of appointing guardians ad litem several years ago. Otherwise, Arizona law is similar to Colorado’s.

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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.