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Massachusetts High Court Limits Wards’ Right to Counsel

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JULY 28, 2003 VOLUME 11, NUMBER 4

Is one who has been determined legally incapacitated and in need of a guardian able to revisit the court’s determination or challenge her guardian’s actions? Yes, wards may request the restoration of capacity and/or challenge the fitness of the guardian. In at least one state, however, wards are not entitled to legal representation unless a proceeding has been brought to terminate a guardianship or remove a guardian. Guardianship of Lon Hocker, July 10, 2003.

In August 1999, Priscilla Claman petitioned the Barnstable Division of the Family and Probate Court to be appointed permanent guardian of her 88 year-old father, Lon Hocker, Jr., who contested the need for a guardian. The court appointed attorney Kathy Pett Ryman to represent Mr. Hocker. After a trial the court found that Mr. Hocker suffered from multi-infarct dementia and was unable to care for himself by reason of mental illness. Ms. Claman was appointed to serve as guardian. The court admonished family members not to interfere with the guardian’s ability to implement a treatment plan for Mr. Hocker.

Over a year later the court vacated Ms. Ryman’s appointment as Mr. Hocker’s attorney. The next day, Ms. Ryman entered a notice of appearance on his behalf with no other pleading—she did not seek to remove the guardian or end the guardianship. Mr. Hocker’s guardian moved to strike the notice of appearance.

Ms. Ryman and the ward’s son opposed the guardian’s motion. After a hearing the court made note of Mr. Hocker’s diminished level of cognitive function and granted the guardian’s motion to prohibit Mr. Hocker’s attorney from appearing on his behalf. The judge, who seemed to think that the ward’s son was just trying to keep tabs on his sister, noted that any concerns about the guardian’s fitness could be addressed in an action to remove her pursuant to state statute. Ms. Ryman and the ward’s son appealed this ruling.

The Massachusetts high Court ruled that apart from an adversarial action “due process does not require that a ward be able to consult with counsel about his guardianship.” The Court emphasized, however, that the ward and his family members “remain free to challenge Claman’s fitness as guardian or the ward’s continued need for a permanent guardian …” Left unanswered was how he might accomplish that task without the aid of counsel.

In Arizona attorneys for wards (especially those with mental health issues) often have extended appointments. It is unlikely that a lawyer’s attempt to appear for even an incapacitated ward would be rejected.

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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.