AUGUST 1, 2016 VOLUME 23 NUMBER 29
At Fleming & Curti, PLC, we handle a lot of guardianship and conservatorship proceedings. We even act as guardian (of the person) and/or conservator (of the estate) in some cases — particularly when family members are unavailable or unable to agree on the best course of action. But one thing we consistently maintain: if there is any reasonable way to avoid a guardianship or conservatorship proceeding, it should be explored first. Court proceedings are expensive, interfere with the autonomy of the subject of the proceedings, and seldom result in entirely happy outcomes.
The most common way to avoid guardianship and conservatorship, of course, is for a person to sign a durable power of attorney (two, actually — one for health care and another for financial authority) naming someone to act on behalf of the signer. When confronted with a preexisting power of attorney, probate judges normally will appoint a guardian or conservator. Of course, if the person named in a power of attorney is acting improperly, the court will not hesitate to intervene. But usually a valid power of attorney avoids the need for court proceedings.
Of course, some family disputes can be intense — and often over the oddest and smallest issues. Take, for example, the case of Hazel McNabb (not her real name), an 89-year-old Indiana woman with six children. Her family’s disagreements arose, and hardened, over what to do after Hazel’s home was damaged by a tornado in 2013. Two of her children thought the bathroom could be repaired and used after the storm; four children felt that her bathroom should be remodeled.
Almost a decade before, Hazel had signed health care and financial powers of attorney, naming son Patrick and daughter Molly as co-agents. It was Molly and Patrick who thought no remodeling was required, and the other four children (Michael, Bridget, Kevin and Gabrielle) complained that, in the aftermath, Molly had begun to isolate them from their mother and cut them out of the discussions about her care.
Believing that Hazel’s mental faculties were declining, and that Patrick and Molly could not be trusted to act in her best interests, Kevin filed a petition asking for appointment of the four children as co-guardians. The probate judge held a hearing, and fashioned an unusual order: the judge appointed all six children as co-guardians, each with specific, limited authority.
Under the probate judge’s order, Michael (a priest) was appointed as guardian over Hazel’s “spiritual needs and affairs.” Bridget, a hairstylist, was appointed guardian over Hazel’s “health care needs and hygiene” (and specifically instructed to ensure that her hair and nails were styled on a regular basis). Molly, who had been named in the power of attorney, was appointed as guardian over Hazel’s “personal” finances (what in Arizona we might call conservatorship — though the limitation to “personal” finances is confusing). Kevin and Patrick were appointed as co-guardians to handle Hazel’s “business ventures” (though the nature of those business ventures is not clear from the appellate court opinion). The probate judge also set out a schedule of visitation to make sure each child would have regular contact with Hazel.
At the same time he entered this complicated order, the probate judge instructed all Hazel’s children that they needed to work together, and to keep Hazel’s interests in mind at all times. He directed that they were all to consider Hazel’s “input and feelings concerning a specific issue before making a decision.”
One odd result from this order is based on Indiana’s law on guardianship: if a preexisting power of attorney is in place, a guardian has no authority over the items managed through the power of attorney unless the probate judge expressly orders revocation of the power of attorney. Since that was not done in Hazel’s case, it meant that Patrick and Molly, the two agents, would still have authority over all health care and financial decisions. Unsurprisingly, those two children declined to accept their appointments as, essentially, limited conservators of a portion (each) of Hazel’s property. Instead, they appealed the probate judge’s findings and order.
Molly and Patrick argued that Hazel was not, in fact, incapacitated at all — and if she was, no guardian was necessary because the power of attorney was working as she had intended. The Indiana Court of Appeals disagreed about the finding of incapacity, but agreed that the existence of the power of attorney might make the unusual guardianship order unnecessary.
According to the appellate court, when a power of attorney is in place it might be unnecessary to appoint a guardian at all. In fact, since the power of attorney was not revoked by the probate judge, the guardians really had no power — the agents named in the power of attorney held all the authority. While agreeing that Hazel was incapacitated, the Court of Appeals reversed the order appointing multiple guardians and remanded the case for the probate judge to reconsider whether there was any need for a guardianship at all. Guardianship of Morris, July 12, 2016.
The probate judge in Hazel’s case should probably be commended for his attempt to bring her family back to the table to discuss her care together. Nonetheless, consideration for her wishes should mean that the default outcome will be recognition of her power(s) of attorney — unless it can be shown that the agents are behaving inappropriately, or failing to act.
Would the same result occur in Arizona courts? Probably not — or at least not for the same reasons. Arizona does not have a law like the Indiana statute giving continuing priority to agents under a durable power of attorney. Instead, the relative authority between a guardian, conservator and agent under one or more powers of attorney are somewhat unsettled in Arizona law. A person is able to indicate their preference for who should be appointed as guardian or conservator, and in practice a power of attorney will usually avoid the need for court involvement — but there is less clarity about the legal status than in Indiana law.