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Ward Has Burden of Proving That Guardianship Should End

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In 1999 the Platte County, Missouri, courts appointed a guardian of the person and conservator of the estate for Linda Werner. Because of her schizophrenia and her resulting difficulty in making responsible decisions the court decided that Janet Waddell, the county’s “public administrator,” should handle Ms. Werner’s personal and financial affairs. By 2002, however, Ms. Werner was doing much better, and she thought it was time to terminate the legal proceedings.

When Ms. Werner asked the court to end the guardianship and conservatorship, the public administrator agreed—partially. Ms. Waddell indicated that she agreed Ms. Werner could handle her own finances. She also agreed that Ms. Werner had improved enough that she should be allowed to vote, and to drive a vehicle. She disagreed, however, with terminating the guardianship altogether.

The Platte County court heard testimony from friends and acquaintances of Ms. Werner, and from a new doctor who had been treating Ms. Werner. The second physician diagnosed her as suffering from depression, rather than the schizophrenia diagnosed at her first hearing by her original doctor.

Several of the witnesses agreed Ms. Werner was doing much better at providing for herself than had been the case at the original hearing. The judge agreed that she should be permitted to take back control of her own finances and that she should be allowed to vote and drive, but continued the appointment of a guardian for all other purposes.

Ms. Werner appealed, arguing that there had been no evidence at the court hearing that she still needed a guardian. The Missouri Court of Appeals upheld the continuation of her guardianship because, said the court, the issue was not whether there was evidence of a continuing need for guardianship—it was whether Ms. Werner had produced sufficient evidence that the guardianship should be terminated.

Because the hearing was on Ms. Werner’s petition to end the guardianship, said the appellate court, she had the burden of proving her case. Although she produced evidence supporting her position, the evidence was not uncontradicted, and the trial judge may have simply not been persuaded. Even if her new physician’s diagnosis of depression was correct, that did not prove that she would continue to do well without a guardian. Ms. Werner’s guardianship continues, though limited. Estate of Werner, February 3, 2004.

Ms. Werner’s case is interesting to Arizona guardianship practitioners for several reasons. In addition to addressing the burden of proof issue, it also introduces the Missouri office of “public administrator,” which is roughly equivalent to Arizona’s “public fiduciary.”

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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.