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Probate Court’s Appointment of Agent as Guardian Reversed

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When Jessie Simmons signed powers of attorney giving her son Donald authority to handle her personal and financial affairs, she probably thought she was doing the right thing. After all, a power of attorney makes it easier for family members to take care of what needs to be done. It also avoids the expense and delay associated with court proceedings. That is why durable powers of attorney are so popular today. They don’t always work to avoid court involvement, however.

Another son, Jack, filed a petition with the Ohio probate courts seeking appointment as his mother’s guardian. Donald objected, arguing that his power of attorney was completely sufficient to handle her business, and that her desire to avoid the court process should be respected. He also insisted that the actual administration of Ms. Simmons’ affairs should be kept private, and that he should not have to provide information to his brother (and their sister, who supported Jack).

The problem with that, according to Jack, was that Donald was mishandling their mother’s money. He owed money to Mrs. Simmons, and was not repaying the loan—and he should have known that was improper, since Donald was a practicing attorney. He also refused to give either of his siblings any information about their mother, claiming attorney-client privilege.

After hearing this evidence, the probate judge decided to appoint Donald as his mother’s guardian. Although there were questions about his handling of her finances, the judge reasoned that at least he would be responsible to account to the court, and other family members could find out what was going on. At the same time, Mrs. Simmons’ wishes about which family member should act would be respected.

Thus, Donald Simmons suddenly found himself appointed to a position that he did not believe to be necessary at all. Jack Simmons, for his part, found that the very person whose actions he had challenged was given authority over Ms. Simmons by the court itself. Jack appealed the decision.

The Ohio Court of Appeals agreed with Jack that Donald should not be appointed as guardian. His behavior and testimony indicated that he had been less than forthright about his handling of Ms. Simmons’ affairs before the court proceeding was initiated, and the judges reasoned that he could not be expected to cooperate any more fully as guardian. He had never asked to be named as guardian, and the appellate court ordered that he should not be appointed. Guardianship of Simmons, October 10, 2003.

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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.