A court-appointed guardian has a variety of responsibilities. One administrative duty: most states require the filing of guardian reports, typically once a year. Those guardian reports alert the court to any changes. They also address whether the guardianship continues to be appropriate.
Who and what must be reported
Arizona, for instance, provides a report form for the guardian to complete. The probate judges (or staff) then review the guardian reports and follow up with anything that concerns them. A guardian must describe the ward’s living arrangements, current condition and daily care status.
Other states have a similar process. In Nebraska, the state where this week’s case report originated, the courts have developed a set of forms for guardians to complete. Question #5 on the Nebraska form asks: “During the past year, how many times and on what dates did you see the ward/incapacitated person?”
Nebraska attorney files guardian reports
Omaha attorney Rodney Halstead has been the principal in a law firm called “Life Care Legal Counselors“. In 2009 a Nebraska probate judge appointed him as guardian for an incapacitated Omaha resident. That meant that Mr. Halstead would be in charge of his ward’s living arrangements, medical care and personal decisions.
It also meant that Mr. Halstead would have to file his annual guardian reports with the court. For the next six years, he did just that. His first two reports said: “I have seen [the ward] about once a month [and] check via phone more often.” In 2012, 2013 and 2014, he wrote: “I have been kept updated mostly by telephone.” Finally, in 2015, he shortened even that description to “updated by telephone.”
There was just one problem with Mr. Halstead’s guardian reports. They were lies.
Mr. Halstead had not visited his ward since 2009. He had not spoken with anyone at the facility, either. If he had, he probably would have found out that his ward moved to a different facility in 2011.
Court discovers the lie
After Mr. Halstead filed his 2015 guardian report the probate court appointed a “visitor” (what Arizona law calls an “investigator”) to make contact with the ward and follow up. The visitor quickly discovered that the information in the guardian reports had been wrong for six years.
It is worth mentioning that Mr. Halstead’s ward was fine, and nothing went wrong as a result of the lies on his guardian reports. Also, Mr. Halstead received no fees to be guardian, so he was not profiting from his misrepresentations. Still, he had lied on court filings, and had repeated the lies for six years.
The Nebraska Supreme Court initiated discipline proceedings against Mr. Halstead. The disciplinary process quickly established that Mr. Halstead had lied, that he acknowledged that he had lied, and that was remorseful. He had not had any other trouble with the courts in his (by then) 25 years of practice.
Still, a lie is a lie. Repeating the same lie over multiple years is especially troublesome. And the courts actually do rely on guardian reports to monitor guardianship cases. The Nebraska Supreme Court suspended Mr. Halstead from the practice of law for one year. State ex rel Counsel for Discipline v. Halstead, November 3, 2017.
As news reports about Mr. Halstead‘s discipline note, part of the reason for strict court oversight is a history of problems with guardianships and conservatorships. Even as Mr. Halstead was beginning his involvement in this case, the local newspapers had been filled with stories about another Omaha lawyer stealing money from her ward’s accounts.
How does this apply in Arizona?
Would the result in Arizona be different? Probably not (though individual facts can make for very different results). When lawyers lie in court documents, it is not only stupid but also very dangerous.
Being a guardian is not a one-phone-call-a-year job. Arizona rules governing professional guardians make clear that the ordinary expectation is for at least a monthly visit. It is of course impossible to know whether a ward is receiving proper care by asking the care provider in a telephone call.
Is it an excuse that Mr. Halstead received no payment to be guardian? No.
Would the same thing happen to a non-lawyer who filled out false guardian reports? Obviously not — suspending a non-lawyer from practicing law makes no sense. But the outcome would likely be harsh, and the cost of the court’s investigation (at least) would likely be charged against the guardian.
One interesting aside: under Arizona rules, at least, longer lawyer suspensions result in an additional penalty. Before restarting practice, a lawyer suspended for more than six months must reapply, satisfy any conditions imposed in the disciplinary order, and establish that they have learned from and been changed by the disciplinary process. Shorter suspensions terminate automatically, but a suspension like the one imposed on Mr. Halstead would be much more serious.