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Nomination of Guardian By Ward Overrides Wife, Friend

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Massachusetts resident James A. Smith completed his estate plan in 1989. Among the documents he signed was a durable power of attorney naming two business associates, David J. Adams and Alfred H. Carl, as his agents. The power of attorney also included a provision that, in the event a guardian or conservator was ever needed, Mr. Smith wanted Adams and Carl to be appointed.

Mr. Smith now suffers from dementia. Last year, his wife filed a petition for appointment of a guardian, asking that she and a family friend, James F. Linnehan, be appointed.

Adams and Carl, the business associates, objected to the appointment of Mrs. Smith and Linnehan. They argued that Mr. Smith had expressed his preference that they be empowered to handle his affairs, and that there was no reason to preclude them from doing so.

Mr. Smith is the principal stockholder of a continuing business, C.K. Smith and Company. Mrs. Smith, pointing out that Adams and Carl were officers of that company, argued that they would have a conflict of interest if they also served as Mr. Smith’s guardians. Mr. Smith’s interests would be better served, she insisted, by the appointment of herself and Linnehan as guardians. Despite Mr. Smith having named Adams and Carl as his guardians, she felt that she should be appointed to protect his interests.

After a hearing in which Mrs. Smith’s attorney claimed (without producing witnesses) that there was friction between the Smiths on the one hand and Adams and Carl on the other hand, the trial court agreed with Mrs. Smith. She and family friend Linnehan were appointed as guardians; Adams and Carl appealed.

The Massachusetts Court of Appeals disagreed, and referred the case back to the trial court for further hearings. The appellate court held that an individual has the right to nominate his or her own guardian, and that the preference of the ward should be respected in most circumstances.

Just because the proposed guardians have business dealings with the ward does not automatically mean they are disqualified from serving as guardians, according to the decision of the Court of Appeals. Unless there is affirmative evidence that would disqualify the business associates, Adams and Carl are entitled to appointment as Mr. Smith’s guardian. Furthermore, the burden of proof is on Mrs. Smith and Linnehan to show that there is a conflict or some other disqualification. In other words, the trial court must appoint the ward’s nominee as guardian unless there is affirmative evidence that such an appointment is not in the ward’s best interests. Guardianship of James A. Smith, Mass. App. Ct., September 11, 1997.

There are two important differences between Massachusetts law and Arizona law that should be kept in mind when considering the Smith case. First, Massachusetts continues to use the old English nomenclature, referring to guardianships of the person (what Arizonans would call simply “guardianship”) and guardianships of the estate (what in Arizona would be a “conservatorship”). The holding of the Smith case would probably be similar under Arizona law, and would apply to both guardianship and conservatorship.

Arizona law also establishes a priority list of prospective appointees, and Adams and Carl would appear above Mrs. Smith and Linnehan under both guardianship and conservatorship law in Arizona. The statute gives the judge clear authority, however, to ignore the priority order whenever there is “good cause” for doing so. That broader latitude might permit the trial court to appoint Mrs. Smith and Linnehan, though considerable weight would have been given to the power of attorney nominating Adams and Carl.

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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.