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Ward Ordered Returned To Minnesota Despite Her Wishes

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When a family member or friend becomes incapable of handling his or her own health care and finances it may be necessary to turn to the courts. Guardianship and conservatorship proceedings are governed by state laws, and the assumptions, procedures and even the language change from state to state. With an increasingly mobile and fragmented society, interstate conflicts are more commonplace in recent years.

Judges have often been inclined to believe that no other state’s courts could be as concerned about the welfare of the court’s wards. As a result, it has sometimes been difficult to secure court permission to move a frail relative to another state to be near family.

While it might seem anachronistic in an age of instant long-distance communication and easy interstate travel, such parochialism is alive and well in state courts today. Consider, for example, the Minnesota Supreme Court’s decision regarding Dorothy F. Brady.

Ms. Brady, now age 73, has lived in Minneapolis for 34 years. She has six children. Her daughter Maureen lived in the family home with her until Maureen married and moved to Pennsylvania. Ms. Brady’s son Timothy then moved in with her for a short time, until she moved to her son Daniel’s home for a few months before moving to Pennsylvania to live, once again, with daughter Maureen. After a Minnesota conservatorship proceeding was begun, the court ordered that Ms. Brady return to Minneapolis to reside in an assisted living facility.

Anthony Roszak, a non-family member appointed as conservator, was instructed by the court to determine where Ms. Brady should live. Initially he decided that she should remain in the assisted living facility, but he permitted her to visit Maureen in Pennsylvania. Mr. Roszak visited Maureen’s home during that visit, and decided that Ms. Brady could continue to live with her.

Ms. Brady herself expressed a desire to continue to live with her daughter in Pennsylvania, so it may have seemed like an easy decision. The Minnesota judge, however, disagreed and ordered that she once again return to Minnesota. The conservator, Ms. Brady (through her attorney) and son Timothy all appealed; another daughter responded, arguing that Ms. Brady should reside in Minnesota.

The state Supreme Court affirmed the order requiring Ms. Brady’s return to the assisted living facility (or, since her condition had apparently worsened during the litigation, to a nursing home in Minnesota). The court pointed to her long Minnesota residency and the fact that more of her children were in Minnesota than in Pennsylvania. It rejected daughter Maureen’s argument that living with family members is always less restrictive than institutionalization (Maureen, said the court, had “pointed to no specific facts in the record supporting their argument”). Finally, the state Supreme Court justices agreed with the lower court that Ms. Brady’s wishes could be ignored, since she is incapacitated. Conservatorship of Brady, March 30, 2000.

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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.

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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.