Search
Close this search box.

Not Every Confused Senior Needs a Guardian or Conservator

Print Article

APRIL 11, 2016 VOLUME 23 NUMBER 14

It is unusual to see an appellate court decision overturning an order appointing a guardian (of the person) or conservator (of the estate). Judges tend to be protective about elderly people showing even a little evidence of mental decline — often to the point of paternalism. It was refreshing to read a Missouri Court of Appeals decision last month that reversed a probate judge’s appointment of a conservator.

The legal story of Dave Burbank (not his real name) began in his 83rd year. He had recently married Cathy, after the death of his wife of almost forty years. Though he was retired, Dave and Cathy lived on a farm in rural Missouri, and actively managed the farm. He had recently entered into a handshake arrangement with neighbors for the sale and lease of a piece of land, and he had signed health care powers of attorney naming the same neighbors as his agents.

When a complaint was filed with Missouri’s Adult Protective Services, they conducted an investigation. Among the things APS did was to arrange a visit with a nurse practitioner; she reported that Dave was unable to complete a “clock test” — when instructed to draw a clock face with the hands pointing to a designated time, he could not follow the instruction. Based on that, the nurse practitioner determined that Dave “lacked the ability to make sound decisions because he lacked the ability to show insight or communication clearly.”

At a court hearing some months later, the local probate judge found Dave to be incapacitated and disabled. The judge appointed Dave’s daughter and the local Public Administrator to be co-guardians and co-conservators, and also ordered that recent transactions entered into by Dave would be voided, and that his marriage to Cathy was invalid.

Dave moved for reconsideration, and four months after the initial proceedings the probate judge conducted a follow-up hearing. At that hearing, the Public Administrator testified that, now that she’d had a chance to meet Dave, she believed that he was able to manage his affairs. Cheryl seemed to be helping with Dave’s needs and care, and acting appropriately. In fact, according to the Public Administrator, the only real concern was what seemed to be the transactions entered into with the neighbors who had filed the original petition — she thought that their handshake deal seemed to take advantage of Dave.

A doctor who completed a more thorough medical evaluation than in the original proceedings agreed that Dave was friendly, cooperative, engaging and generally capable. It was true, the witnesses agreed, that he was losing some ability to recall recent events (and even seeing some long-term memory loss), and that he suffered from mild cognitive decline. But he could sign a new power of attorney, designating his wife (or someone) to help him with more complicated transactions.

According to the doctor evaluating Dave, it would be appropriate to consider a court-appointed conservator who could slow down any “sudden, rash or misdirected financial decisions” that he might be manipulated into undertaking. Based on that, and (presumably) on the natural tendency to be protective, the probate judge decided to modify the original order he had imposed. This time, he appointed Cheryl to serve as the sole conservator, with her authority limited to preventing any transfer of sale, transfer or conversion of real estate owned by Dave.

Still not satisfied with the reduced court intervention, Dave appealed. The Missouri Court of Appeals considered his argument that there had been insufficient evidence to impose even the limited conservatorship, and agreed. The probate court order was reversed, and the conservatorship ended.

The appellate court noted that a guardianship or conservatorship must be shown by “clear and convincing evidence,” a higher standard than the usual requirement for civil lawsuits. Considering all the testimony, and the fact that the initial proceedings were initiated by the very people who appeared to have taken business advantage of Dave, the appellate judges ruled that the record was “devoid of clear and convincing evidence” of his disability. In the Matter of Barnard, March 22, 2016.

Would Dave’s experience be the same, or similar, in Arizona courts? It might well be.

First, Arizona law is essentially similar to the appellate court’s description of Missouri’s law on guardianship and conservatorship. As in Missouri, the Arizona rules require proof by “clear and convincing evidence.” That’s higher than the “preponderance of the evidence” standard imposed on most civil lawsuits, though not as high a burden as the “beyond a reasonable doubt” standard applied in criminal cases.

Arizona also has an additional requirement before appointment of a guardian (of the person) can be considered: the court must specifically find that a person in Dave’s position would be unable to provide for their own food, shelter and necessities without the assistance or intervention of a guardian. That seems like it would have been difficult to show in Dave’s case, and that would probably mean no guardian would be appointed — but it would not prevent appointment of a conservator or limited conservator (of the estate).

It seems likely that, if an Arizona court appointed a guardian, conservator, or limited conservator for someone with a story similar to Dave’s, the appellate court in Arizona would (like the Missouri Court of Appeals) reverse the appointment. But would a probate judge in Arizona appoint a guardian or conservator in the first instance?

It’s hard to generalize, since probate judges vary widely in their experiences, resources and attitudes. We would hope that a Tucson (Pima County) probate judge would not have appointed a guardian, conservator or limited conservator on the basis of evidence as flimsy as that introduced in Dave’s initial and subsequent court proceedings. Judges, though, are often protective — and sometimes overprotective.

Our bottom line: we admire Dave for his persistence and his ability to object to even the limited conservatorship imposed on him. We are proud of him, and of the Missouri Court of Appeals.

2 Responses

  1. Great article. I agree that probate courts are instinctually protective. But if an attorney respected by the bench tactfully and artfully argues how the standard for appointment of a guardian( (or conservator) has not been met, then I would hope most probate judges would step back and recognize that a declaration of incapacity is too broad.

Stay up to date

Subscribe to our Newsletter to get our takes on some of the situations families, seniors, and individuals with disabilities find themselves in. These posts help guide you in the decision making process and point out helpful tips and nuances to take advantage of. Enter your email below to have our entries sent directly to your inbox!

Robert B. Fleming

Attorney

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

Attorney

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

Attorney

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

Attorney

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.