Not Every Confused Senior Needs a Guardian or Conservator

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.