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a.  Court/Guardian Relationship, Role of Guardian, Guardian ad Litem, Attorney

Guardianship and Protective Placement of Lillian P., Wisconsin Appellate Court, 2000 Wisc. App. Lexis 685 (2000). Attorney Patricia Cavey purportedly represented both Lillian, a ninety-year-old woman who had been adjudicated incompetent due to dementia, and her son Lester, in relation to the sale of the elderly woman’s house. Lester lived in the home with Lillian, and the record suggested that Lester had not paid rent in a timely fashion. Lester had sought to purchase the home at a below-market cost, and Lillian had said that she hoped to return to the home as her domicile, after leaving her nursing home. Another viable offer for the house was received for $40,000 more than Lester’s offer, but Cavey objected to the offer on behalf of both Lillian and Lester.

Attorney Cavey’s dual representation was challenged by a court appointed guardian ad litem, but the trial court allowed the arrangement based on a written waiver signed by Lillian that authorized the dual representation and the fact that co-counsel was involved in the matter along with Cavey. When the guardian ad litem appealed, the appellate court overturned the trial court decision, finding that Cavey’s dual representation was a conflict of interest. The court noted medical evidence that showed that returning Lillian to her house would not be in her best interest, and that selling the house at the highest available price was more consistent with her best interest. The appellate court also found nothing in the record to suggest that Lillian had the capacity to knowingly consent to the dual representation proposed by Cavey, and that co-counsel’s involvement would do nothing to negate the conflict of interest.

Estate of Wellman, Illinois Supreme Court, 220 Ill. Dec. 360, 673 N.E.2d 272, 174 Ill.2d 335 (1996), rehearing denied, cert. denied, Murphy v. Young, 117 S. Ct. 1554, 137 L.Ed. 2d 702 (1997.) The probate court controls a mentally disabled person's person and estate and directs the guardian's care, management, and investment of the estate.

In re Guardianship of Hicks, Ohio Trial Court, 624 N.E.2d 1125, 63 OhioMisc.2d 280 (1993). Statute authorizing probate court to function as superior guardian did not authorize court to interject itself into negotiations of minors' personal injury claim and require the guardian to enter into settlement.

In re Guardianship of Jadwisiak, Ohio Supreme Court, 593 N.E.2d 1379, 64 OhioSt.3d 176 (1992). The court having jurisdiction of the guardianship case is the superior guardian, while the actual guardian is deemed to be an officer of the court. The guardian may employ an attorney to initiate or defend a lawsuit on behalf of the guardianship estate.

In the Matter of the Guardianship of Myrtle E. Mabry, Illinois Appellate Court, 666 N.E.2d 16, 216 Ill.Dec. 848 (1996). A guardian ad litem appointed by a probate court represents the ward's best interests, rather than the ward. A guardian ad litem is only required prior to a hearing on the ward's competence, although a guardian ad litem or next friend may be appointed to represent the ward's best interests in subsequent litigation.

b.  Fees for Guardians, Guardians ad Litem, and Attorneys

Guardianship and Conservatorship of Leon C. Donley, An Incapacitated Person, Nebraska Supreme Court, 262 Neb. 282, 2001 Neb. Lexis 128 (2001). In a case of first impression, the court held that “costs and attorney fees incurred in the good faith initiation of conservatorship proceedings constitute necessaries for the support or benefit of the protected person such that payment of reasonable costs incurred may be assessed against the protected person’s estate.” (citations omitted).

GFS Leasing & Management, Inc., dba Altercare of Louisville v. Vicki L. Dayton, Guardian, Ohio Appellate Court, 2001 Ohio App. Lexis 3499 (2001). A guardian who had executed a nursing home contract that agreed to pay for any and all nursing care charges was not personally responsible for the nursing charges, and was authorized to collect reasonable fees from the guardianship. The nursing home sought to hold the guardian personally responsible, even though she had signed the contract as her capacity as guardian. The appellate court rejected this argument and also held that “(i)t is common knowledge that a guardianship has fees and costs associated with it including probate court costs, guardian compensation and, possibly, as in this case, attorney fees. Further it is foreseeable that (the protected person) could incur other debts, such as doctor fees, ambulance or medical transportation costs or pharmacy expenses not otherwise included in the charges of the nursing home. If the contract language of ‘any and all’ was taken literally, the Guardian could pay none of these expenses but would be required to pay all of the ward’s money to the nursing home for any charges incurred. We find such a literal interpretation absurd.”

Estate of Bernadine C. Goffinet, Deceased, Illinois Appellate Court, 318 Ill. App. 3d 152, 742 N.E. 2d 874, 2001 Ill. App. Lexis 22, 252 Ill. Dec. 336 (2001). A guardian of the person submitted a claim for reimbursement of her services after the ward (her mother) had died. The claim covered nearly five years of personal services, which the guardian offered to document with a log prepared in the presence of her father, contemporaneous to the time of the services. A trial court disallowed the claim, citing the Illinois Dead-Man’s Act provisions prohibiting testimony by a person with a direct interest in the action about conversations with the deceased. The appellate court reversed the trial court, holding that a guardian is entitled to reasonable compensation under the terms of the Illinois Probate Act. To apply the Dead-Man’s Act restriction in this context would “so affect the compensation provision of the Probate Act as to practically invalidate it. This is true because a large portion of the acts performed as guardian of the person will necessarily be in the presence of the decedent (the ward, while living).” In dicta, the court also noted its desire that guardians of the person present the filing of claims for compensation of claims on a quarterly basis. The court noted that“(t)he fact that compensation for five years of services is sought in a single petition, after the death of the ward, may cast some doubt on the validity of the claim.”

In Re Charlene Battiato, Nebraska Supreme Court, 259 Neb. 829, 613 N.W.2d 12 (2000). The ward in this case resided in a nursing home and received over $800 monthly in Supplemental Security Income and Railroad Retirement Act benefits. Excess costs of care were paid by Nebraska’s Department of Health and Human Services Finance and Support. The Department objected when the court authorized attorney fees to be paid from the ward’s entitlement income, with the deficit in costs of care to be made up by the Department. The reviewing court found the arrangement to be proper, noting that the ward, if competent, could have use the federal entitlement income to pay attorney fees, and the ward’s guardian should be able to do the same.

In Re Guardianship and Conservatorship Lettie Tucker, Nebraska Appellate Court, 9 Neb. App. 17, 606 N.W.2d 868 (2000). An attorney petitioned for guardianship and conservatorship, both temporary and permanent, and guardians and conservators were appointed who challenged the attorney’s bill of $798. The appellate court upheld the trial court’s finding that the fees were appropriate, even absent a written fee arrangement. The court found that a contract could be implied, that the attorney rendered valuable services that were not objected to and were knowingly accepted by the ward, and that the attorney had a right to compensation.

In Re Estate of Chevalier, Missouri Appellate Court, 1999 Mo. App. LEXIS 1045 (1999). After parents petitioned for adjudication of disability for adult disabled daughter, the trial court ordered the parents, as petitioners, to pay a $3,100 guardian ad litem fee to an attorney who was appointed by the court. One week after the parents petitioned, a cross petition was filed by the Missouri Department of Social Services. The parents sought their own appointment, and the state asked for the appointment of a county public administrator. The court appointed the mother guardian. Apparently, the trial court agreed with a county attorney, and assessed costs against the parents, despite a Missouri statute that provided that such fees be paid from the assets of the adjudicated disabled person, if there are any, and by the county if the disabled person is indigent. The appellate court overruled the trial court, rejected the argument of the county attorney and ordered the fees to be paid by the county.

Sechler v. Furtado, Ohio Appellate Court, 1999 Ohio App. LEXIS 2036 (1999). In a case where separate parties were appointed guardian of the person and estate, the person guardian petitioned the probate court for the award of attorney fees. Finding that much of what was requested amounted to the person guardian’s court costs, the court denied the fee request. The court noted that the duties of a person guardian were spelled out in the statute to include “protection and control of the ward’s person and suitable maintenance for the person.”

The appellate court noted the statutory differences in duties between estate and person guardians, and that “any legal expenses incurred by the guardian of the person must directly benefit either the estate or ward” to be paid by the estate. Under Ohio law, “most legal expenses are borne by the guardian of the estate, who is specifically authorized to bring suit for the ward and appear and defend on behalf of the ward in suits.”

Cripe v. Leiter, Illinois Supreme Court, 184 Ill. 2d 185, 703 N.E.2d 100, 234 Ill. Dec. 488 (1998). The Supreme Court found that a complaint for recovery of fees brought by a successor guardian against the attorney who had previously represented the ward prior to the adjudication of disability, brought under the Illinois Consumer Fraud Act, could not be maintained. The Court’s ruling applied only to Consumer Fraud Act counts in the plaintiff guardian’s complaint, and other counts brought under theories of fraud, constructive fraud, legal malpractice and breach of fiduciary duty are pending.

In re Matter of Estate of Shull, Illinois Appellate Court, 295 Ill. App. 3d 687, 693 N.E.2d 489, 230 Ill. Dec. 360, (1998). A reviewing appellate court found that the trial court’s award of $500 and denial of the remainder of attorney fees and costs was inappropriate. The attorney fees were for work performed on behalf of a guardianship petitioner who was appointed temporary guardian for his 87-year-old great-aunt. The court denied fees related to the attorney’s performance of legal services beyond those routinely required in a guardianship proceeding, including the negotiation of terms of the guardianship case, the removal of an agent acting under a power of attorney executed by the ward, and other matters. The appellate court found that compensation for these matters was fair, as they provided benefit to the ward’s estate. The court considered the following issues in its decision:

Factors in Determining Reasonable Attorney Fees

  1. The Work Involved
  2. Size of the Estate
  3. Skill Shown by the Work and the Time Expended
  4. Success of the Efforts Involved
  5. Good Faith and Efficiency

In re Estate of McInerny, Illinois Appellate Court, 289 Ill. App. 3d 589, 682 N.E.2d 284, 224 Ill. Dec. 723 (1997). Fee petitions from both guardian and guardian’s attorney were denied where no guardianship estate existed, and ward was beneficiary of a discretionary supplemental needs trust with a spendthrift provision. The Appellate Court held that even though a guardian of the person was statutorily entitled to reasonable compensation for services, the trust was not available to satisfy any claims. The guardian’s assertion that she should be allowed, under Section 157(b) of the Restatement of Trusts to assert a creditor’s claim against the trust, was also denied. Although the Restatement provision allows claims for “necessary services rendered to the beneficiary or necessary supplies furnished to him (her)”, the guardian is not supplying necessary services. The Court found that the guardian is only required to represent the ward’s interests, and not the services she sought reimbursement for, including grocery shopping, taking the ward to lunch, or taking the ward on vacations. The trustee had distributed funds from the trust for food, clothing, shelter and other miscellaneous items (primary support) at the guardian’s request for the ward’s necessities. The opinion also contained dicta that suggested that assumption of the guardianship was voluntary and that there was no evidence that the guardian had been misled about what might be reimbursable.

Flynn v. Scott, Missouri Appellate Court, 969 S.W.2d 260 (1999). In the third appeal to arise from the same guardianship case, the appellate court this time addressed the issue of payment of guardian’s fees. See Matter of Estate of Scott, below. After reiterating that the underlying guardianship case was void for want of personal service on the ward, the court found that over $18,000 in guardian’s fees would be disallowed, despite the guardian’s good faith in discharging duties on behalf of the “estate.”

Matter of Estate of Scott, Missouri Appellate Court, 932 S.W.2d 413 (1996). A guardian ad litem's fee award is improper when the order appointing guardian is found to be void for want of jurisdiction.

Espevik v. Kaye, Indiv. and as Executor of the Estate of Peter Paul Reiner, Deceased, Illinois Appellate Court, 660 N.E.2d 1309, 277 Ill App.3d 689, 214 Ill.Dec. 360 (1996). Guardian ad litem fees may be allowed as costs and court has discretion to determine which party to assess fees against.

In re Sloan Estate, Michigan Appellate Court, 538 N.W.2d 47, 212 Mich. App. 357 (1995). An attorney in a guardianship case was entitled to reasonable compensation where services are necessary and provided on behalf of estate. A Fee for fee@ claims incurred to establish and defend a fee petition for work on behalf of the guardianship estate were disallowed, as such fees could not be shown to benefit the estate or increase or preserve estate assets.

In the Matter of the Estate of Jennifer C. Dyniewicz, Illinois Appellate Court, 648 N.E.2d 1076, 271 Ill.App.3d 616, 208 Ill.Dec. 154 (1995). Where co-guardians failed to file mandated court accountings in a timely way, court reasonably charged co-guardians personally with the payment of guardian ad litem fees. The guardian ad litem appointment was warranted to investigate the co-guardian's dereliction of duty in relation to final estate accounting. Denial of co-guardian's fee request was also reasonable where fiduciary duty to the ward was breached by their failure to file annual accountings on nine separate occasions.

In re Rita Mary Serafin, Alleged Disabled Person, Illinois Appellate Court 649 N.E.2d 972, 272 Ill.App.3d 239, 208 Ill.Dec. 612 (1995). Guardian ad litem fees could properly be awarded against the estate of an alleged disabled person even where no adjudication of disability or estate administration occurred.

Robbins v. Ginese, Ohio Appellate Court, 638 N.E.2d 627, 93 Ohio App.3d 370 (1994). An attorney's work as a guardian ad litem for children in custody dispute could be compensated at $100 per hour, even though that was the same hourly rate charged for Alegal@ work.

In re Estate of Bickam, Ohio Appellate Court, 620 N.E.2d 913, 85 Ohio App.3d 634 (1993). A guardian who had faithfully and honestly discharged the duties of his or her trust is entitled to compensation, and the attorney whose services resulted in the establishment of the guardianship is entitled to compensation.

In re Estate of George Herman Nelson, Illinois Appellate Court, 621 N.E.2d 81, 250 Ill.App.3d 282, 190 Ill.Dec. 212 (1993). Court had inherent power to appoint guardian ad litem to investigate abuse allegations, and to authorize payment from estate.

In re Estate of Maria Stoica, Enid L. Kempe, Guardian ad litem of Maria Stoica, et al., Illinois Appellate Court, 560 N.E.2d 1152, 203 Ill.App.3d 225, 148 Ill.Dec. 555 (1990). Trial court lacks power to apportion fees of guardian ad litem; sole authority comes from statute permitting court to allow reasonable compensation.

In re Marriage of Lawrence Kutchins, Illinois Appellate Court, 510 N.E.2d 1300, 157 Ill.App.3d 384, 110 Ill.Dec. 269 (1987). An award of attorney fees is within the sound discretion of the court. Representation of a ward in restoration proceeding, where authorized by the court, is appropriate, and court may award fees.

In re Marriage of Herbert J. Drews, Jr., Illinois Appellate Court, 487 N.E.2d 1005, 139 Ill.App.3d 763, 94 Ill. Dec. 128 (1985). A wife whose husband suffered injuries resulting in adjudication of disability could seek reasonable attorney fees from husbands' estate, in action brought by husband's guardian for dissolution of marriage.

Houston v. Zaner, Missouri Appellate Court, 683 S.W.2d 277 (1984). A probate court cannot arbitrarily create a fee schedule to determine what is just and reasonable compensation@ for a guardian, without taking into account evidence of the reasonable value of services rendered by the guardian.

c.  Penalties for Breach of Fiduciary Duties – Guardian or Attorney Misconduct

Board of Professional Responsibility v. Glynn, Wisconsin Supreme Court, 2000 WI 117, 238 Wis. 2d 860, 618 N.W. 2d 740, 2000 Wisc. Lexis 788 (2000). In the second round of disciplinary proceedings involving the same attorney and similar misdeeds, the Wisconsin Supreme Court supported an additional nine-month suspension to run consecutive to the prior one-year suspension. See following case.

Board of Professional Responsibility v. Glynn, Wisconsin Supreme Court, 225 Wis. 2d 202, 591 N.W.2d 606 (1999). A Milwaukee attorney who was appointed guardian in two routine guardianship cases was suspended from the practice of law for one year. “By collecting unreasonable attorney fees from three clients without the approval of the court in which their matters resided, by failing to file the necessary reports with the court in those matters and act competently and timely in them, and by using false statements and documents to justify his excessive fees and to mislead the person investigating his conduct, Attorney Glynn has demonstrated a willingness to place his own pecuniary interests above the interests of the clients whose representation he undertook by court appointment and to create false documents to prevent that conduct from being discovered. In the administrative process brought against the attorney, the referee appointed to investigate the charges recommended only a six-month suspension, but the Board of Attorneys Professional Responsibility appealed and argued in favor of the one-year suspension.

In the Matter of Michael J. Friesen, Attorney Respondent, Kansas Supreme Court, 2001 Kan. Lexis 515 (2001). Attorney Friesen was temporarily suspended from the practice of law for failing to promptly account for his management of client funds, including funds held by the attorney on behalf of a client who had been the subject of a conservatorship proceeding. The attorney had written himself checks for amounts over $176,000 in a nine month period, ostensibly for payment of attorney fees to the lawyer’s firm. When an appellate court ordered an accounting from the attorney, he refused, claiming client confidentiality. At a rule to show cause hearing, he continued to refuse to cooperate with the court, and the suspension resulted.

Cuyahoga County Barr Ass’n v. Lavin, Ohio Supreme Court, 92 Ohio St. 3d 102 748 N.E. 2d 1100, 2001 Ohio Lexis 1530 (2001). William J. Lavin, a Cleveland attorney, wrote at least 40 checks totaling roughly $91,800 from a client’s (minor) guardianship account for his own use. He transferred another client’s funds into the account to disguise the fraud, and manufactured false bank statements as attachments to court accountings as a part of his scheme. The attorney was sentenced to 15 months in prison for bank fraud and ordered to pay restitution on October 31, 1997. The Ohio Supreme Court recommendations of a disciplinary panel and disbarred the attorney. In commenting, the Court found the case to be remarkably similar to the Wherry case (see below) and said that “(t)he continuing public confidence in the judicial system and the bar requires that the strictest discipline be imposed in misappropriation cases.”

Office of Disciplinary Counsel v. Judith Wherry, Ohio Supreme Court, 87 Ohio ST. 3d 584, 722 N.E.2d 515. 2000 Lexis 62 (2000). An attorney represented a guardianship estate from which she was found to have improperly withdrawn nearly $60,000, failed to account for more than $20,000, and misrepresented the nature of a loan of $9500. Counting the more than $14,000 in fees that the court demanded back from the attorney, the attorney’s bonding company had to reimburse the guardianship $116, 914.86. The attorney argued that she had significant mental health difficulties, but the disciplinary panel rejected the mitigating arguments. The Supreme Court upheld the attorney’s permanent disbarment.

Office of Disciplinary Counsel v. Madden, Ohio Supreme Court, 89 Ohio St. 3d 238, 730 N.E.2d 379, 2000 Ohio Lexis 1448 (2000). An attorney, acting as guardian and then as administrator of the decedent’s estate of Josephine Jackson, caused losses of over $15,000 to the guardianship and over $6,000 to the decedent’s estate. The attorney was also found to have misappropriated funds from several other decedent’s estates. The Jackson estate received reimbursement from the attorney’s bonding company. For the sum of these infractions, the attorney was permanently disbarred, despite evidence of his habitual depression.

In Re Guardianship and Conservatorship of Bessie R. Jordan v. George Remer and Garden Farms, Inc., Iowa Supreme Court, 2000 Iowa Sup. Lexis 171 (2000). Attorney Remer served as conservator of Bessie Jordan, his aunt, and controlled Garden Farms, Inc. (GFI), a corporation. Remer also acted in the capacity of farm manager for the farm owned by his aunt/ward and his mother, which was operated in partnership. Remer obtained court approval to sell Bessie’s share in the farm to GFI, telling the court that his wife Carol owned the corporation, and that the sale was in the best interest of the ward. The property was appraised, and the court authorized the sale, with no notice to the ward or anyone else acting in her behalf. The ward subsequently died. Remer’s wife was appointed as administrator for the decedent’s estate, and Remer as attorney. Gail Lovell petitioned for removal of the Remer’s and brought the issues of impropriety before the court when she was appointed successor administrator. The court found that Remer, while acting as conservator, had engaged in self-dealing and showed complete disregard for his obligations as a fiduciary and for the rights of his ward. Remer, his wife and his corporation were ordered to re-pay the estate over $87,000, and Remer was also sanctioned in the amount of $20,000 punitive damages. The trial court refused to revoke the land sale, but the Supreme Court reversed and ordered a return to the status quo.

Among other things, Remer was found to have failed to pay Bessie rents due her; failed to pay real estate taxes and charged Bessie for the tax penalties; improperly charged Bessie for accounting fees required to make sense of his own shoddy financial records; and improperly charged Bessie grain bin expenses and farm management fees. In upholding the imposition of sanctions against Remer personally, the Supreme Court said that “(m)ere negligence does not account for Mr. Remer’s long course of self-dealing. The self-dealing resulted from his complete disregard for (his) obligations as a fiduciary and for the rights of his ward.

Iowa Supreme Court Board of Professional Ethics and Conduct V. Remer, Iowa Supreme Court, 2000 Iowa Sup. Lexis 173 (2000). Ethics panel responsible for the discipline of attorneys revoked attorney’s license. The panel relied on a trial court’s finding (see above) that George Remer had engaged in self-dealing and showed complete disregard for his obligations as a fiduciary and for the rights of his ward. Remer, his wife and his corporation were ordered to re-pay the estate over $87,000, and Remer was also sanctioned in the amount of $20,000 punitive damages. The Supreme Court ordered the panel to conduct a new hearing on the matter, rejecting the panel’s position that it could adopt the trial court’s work under the practice of issue preclusion. The standard of proof used in the trial court was, in some instances, not the same that would be required before the panel.

State of Iowa v. Jacobs, Iowa Supreme Court, 607 N.W.2d 679, 2000 Iowa Sup. Lexis 47 (2000). Defendant acted as attorney in three decedent’s estates and a conservatorship/guardianship case. He was questioned under oath concerning the loss of funds in one of the estates, and shortly thereafter was voluntarily admitted to a psychiatric facility. In total, the defendant stole over $185,000 from different estates and a conservatorship, using the funds to travel, acquire assets, pay bills, and make political and charitable contributions. He was also found to have forged documents and filed false reports with courts to conceal his crimes. The defendant did not contest the charges, and plead insanity and diminished responsibility, and the trial court found that he suffered from bipolar affective disorder, manic type. The defendant also offered substantial character evidence, to persuade the court that a person of his good character would have to have been influenced by mental illness to commit such crimes. The reviewing court found that the character evidence was relevant, but not dispositive, and upheld the lower court’s convictions on charges of theft and other crimes. Because the trial court failed to provide reasons for imposing consecutive sentences, the lower court’s combination of sentences that would result in jail time of up to thirty years was vacated, and the case was remanded for re-sentencing.

In the Matter of Thomas J. Leising, Kansas Supreme Court, 4 P.3d 586, 2000 Kan. Lexis 364 (2000). Thomas Leising, a Topeka attorney served as guardian and conservator of an incapacitated person, a mentally ill man in his mid-40’s. In the course of an annual review by the court the guardian/attorney was found to have improperly removed $30,000 from the estate. He was made to pay double the amount of the loss, and personally reimbursed his bonding company for half the amount. The other half was paid by the ward’s mother, who entered into a personal services arrangement with the attorney to work off the balance. The attorney used the misappropriated funds for travel to New York where he and the ward stayed at the Plaza Hotel and saw four Broadway shows (over $6700); meals for the attorney, his wife and children (over $948); personal payments to the attorney’s wife for shopping trips (over $11,500); two trips to Baby Dolls by the attorney and the ward(over $450); a trip to Houston by the attorney and his wife ($845); two trips to Cancun for the attorney, the ward, and the attorney’s wife (over $26,000); a trip to Atlanta by the attorney to meet with trust officials, and to see the Atlanta Braves ; purchase of women’s clothing and footwear for the attorney’s family ($1600); a birthday party for the ward ($615.38); and other unauthorized expenses. The Supreme Court wrote that the attorney “apparently rationalized his actions as not hurting anyone and bringing happiness to those he wanted so much to please.” The attorney also offered evidence of his alcohol consumption; he was drinking to excess, but not impaired. In a wonderful understatement, the court held that “(i)t is difficult to conceive of a more serious violation than what is before us.” The Supreme Court upheld the attorney’s indefinite suspension from the practice of law.

Nebraska v. Lester Burchard, Nebraska Appellate Court, 2000 Neb. App. Lexis 137 (2000). Unpublished opinion. Burchard served as guardian for a vulnerable adult. The supervising court found that the guardian, without court knowledge, sold a mobile home belonging to the ward, and did not account for the sale as required. Burchard claimed that the sale proceeds were used to pay estate related bills, but had no proof. The reviewing court upheld the trial court’s sentence of 13 to 24 months imprisonment based on the trial court’s determination that “granting probation (as opposed to jail time) would promote disrespect for the law and promote disrespect for a law that you should treat…vulnerable people…in a …completely humane manner.”

Board of Attorneys of Wisconsin v. Sheehan, Wisconsin Supreme Court, 224 Wis. 2d 44, 588 N.W.2d 624 (1999). An attorney, who was appointed conservator for man who had been in a severe automobile accident and had cerebral palsy, suffered mental problems, and was physically dependent on others, was disbarred. Among other things, the attorney was found to have made disbursements of the ward’s $80,000 personal injury settlement award to him and others without court oversight, with over $20,000 of these funds un-accounted for.

The Supreme Court, in reviewing the decision of a referee who investigated allegations of attorney misconduct, noted that attorney Sheehan engaged in unethical practices in two other unrelated matters as well as the conservatorship matter. With respect to the conservatorship, the Supreme Court adopted the referee’s findings that the client/ward “regarded Attorney Sheehan as his friend and someone he could trust, but as a result of the mismanagement of his funds, he came to believe Attorney Sheehan stole his money and now finds it difficult to trust anyone.”

Board of Professional Responsibility v. Glynn, Wisconsin Supreme Court, 225 Wis. 2d 202, 591 N.W.2d 606 (1999). A Milwaukee attorney who was appointed guardian in two routine guardianship cases was suspended from the practice of law for one year. “By collecting unreasonable attorney fees from three clients without the approval of the court in which their matters resided, by failing to file the necessary reports with the court in those matters and act competently and timely in them, and by using false statements and documents to justify his excessive fees and to mislead the person investigating his conduct, Attorney Glynn has demonstrated a willingness to place his own pecuniary interests above the interests of the clients whose representation he undertook by court appointment and to create false documents to prevent that conduct from being discovered. In the administrative process brought against the attorney, the referee appointed to investigate the charges recommended only a six-month suspension, but the Board of Attorneys Professional Responsibility appealed and argued in favor of the one-year suspension.

Toledo Bar Association v. Candiello, Ohio Supreme Court, 85 Ohio St. 3d 36, 706 N.E.2d 1216 (1999). After an attorney was appointed guardian of a woman who had been his client for 23 years, he maintained cash belonging to the ward in his office safe, with only a handwritten note identifying the source of the funds. He claimed to do so to frustrate those who would make claims against the ward’s estate and make it difficult and expensive for them to trace her assets. The Supreme Court upheld the suspension of the attorney from the practice of law for two years.

Office of Disciplinary Counsel v. Romaniw, Ohio Supreme Court, 83 Ohio St. 3d 462, 700 N.E.2d 858 (1998). Cleveland attorney Chrystine Romaniw was appointed guardian of the person and estate of an 83-year-old ward and guardian of the estate of an 81-year-old ward. After the trial court found that the attorney misappropriated over $77,000 from the estate of the 81-year-old ward and nearly $35,000 from the estate of the 83-year-old ward, a complaint was filed for the Office of Disciplinary Counsel, and the attorney was disbarred. The Supreme Court upheld the disbarment, noting the fact that the attorney was suffering from multiple sclerosis and using the misappropriated funds to support her children in college and private secondary schools. Finding the mitigating facts unpersuasive, the Supreme Court reiterated it’s past ruling that “the continuing public confidence in the judicial system and the bar requires that the strictest discipline be imposed in misappropriation cases.”

Iowa Supreme Court Board of Professional Ethics and Conduct v. Stephen W. Allen, Iowa Supreme Court, 586 N.W.2d 383, 1998 Iowa Sup. LEXIS 275 (1998). An attorney was appointed guardian and conservator for his elderly aunt, and was found to have taken fees from the conservatorship without court approval, converted estate funds to personal use, and made unauthorized gifts to himself. The amount of disputed funds was $46,359. A lower Grievance Commission, an attorney disciplinary body, recommended a public reprimand, but the Supreme Court, acting as a reviewer, imposed a one-year suspension from the practice of law.

The attorney/guardian argued that his aunt had intended to funds to go to him and to his sister, and that the fees/gifts were consistent with his aunt’s testamentary wishes and benefited the estate by reducing estate taxes. The probate court, basing it’s judgment on a statutory requirement that guardian fees be approved in advance, disallowed the fees, ordered them to be repaid, and referred the matter to the attorney disciplinary body. The fees were repaid.

In a subsequent hearing, the attorney/guardian testified that he had taken the money in part due to his own dire financial circumstances, his and his wife’s health issues, and the wedding of his son. He indicated that he did not feel that he could wait for the probate court to approve his fee requests, and that he felt that in any case, the court would not approve his requests. The attorney/guardian’s sister did not object to the fees and supported her brother, and seven character witnesses testified in support of the attorney/guardian.

In explaining the rationale for a seemingly light penalty, the Supreme Court noted that the attorney/guardian had not covered up his actions. He accounted for all expenditures and fees in his annual and final reports to the probate court. However, the court noted that Mr. Allen had taken money from the estate on fifteen different occasions after his aunt had suffered a stroke, and that she was unaware of the specific amount of “loans” that he had made to himself. The court found a suspension to be in order based on the attorney/guardian’s breach of his position of trust, noting that his duty was not lessened simply because of his close relationship with his aunt/ward.

Frey v. Blanket Corp., Nebraska Supreme Court, 255 Neb. 100, 582 N.W.2d 336 (1998). The Nebraska Supreme Court found that, as a matter of law, a guardian does not enjoy quasi-judicial immunity in making residential placement decisions for a ward, although the guardian cannot be liable for ordinary negligence. See discussion above, in personal rights section.

Clarence Conrad Bolton v. Velda Souter, Kansas Supreme Court, 872 P.2d 758, 19 K.2d 384 (1994). The Probate Code directs the imposition of double liability upon any person who has converted or embezzled personal property of a decedent or conservatee. However, that penalty cannot be applied when the proposed conservatee transfers money in an attempt to hide assets, and the transferee subsequently embezzles the funds.

In re Guardianship of McPheter, Ohio Appellate Court, 642 N.E.2d 690, 95 OhioApp.3d 440 (1994). Guardian was held liable for damages of $16,800 for failure to rent or sell the residence of a ward who was in a nursing home with no reasonable prospect of returning home, even though guardian relied on advice of attorney.

d.  Guardian's Bond

Ohio Casualty Group of Insurance Companies v. Cochrane, Ohio Appellate Court, 586 N.E.2d 257, 67 Ohio App.3d 222 (1990). If a guardian breached a suretyship contract in failing to pay a premium for a guardianship bond as promised, that breach was not basis to render the bond unenforceable.

e.  Removal of Guardians

In Re Estate of Pittman, Missouri Appellate Court, 1999 Mo. App. Lexis 2376 (1999). Gerald Pittman was appointed guardian and conservator for his mother, Edra Pittman. On the ward’s petition, the court removed Gerald and appointed his former wife as successor conservator and a county Public Administrator as guardian. The court rejected Gerald’s claims that no one had told him that he had to file annual accountings, finding that he could have simply read the law. The court also found that his failure to file annual reports relating to the ward’s physical and mental condition could contribute to a finding that the guardian is neglecting his responsibilities and duties. Finally, the court found that although a hostile relationship between a guardian and ward in itself does not warrant removal of the guardian, Gerald’s nearly complete lack of a relationship with his mother was significant. The court found that their relationship deteriorated greatly after Gerald ordered the removal of a personal telephone from his mother’s room, and that their only interaction occurred when Edra called Gerald to ask for money.

In re Conservatorship of Estate of Marsh, Nebraska Appellate Court, 566 N.W.2d 783, 5 Neb.App. 899 (1997). Irreconcilable differences and personality conflict between a conservator and a protected person (ward) were insufficient to constitute Agood cause@ for removal of guardian.

Guardianship of Tina Marie W., Wisconsin Appellate Court, 573 N.W.2d 207 (1997). A father/guardian's past sexual assault and abuse of his wife (mother of the ward) was deemed to be relevant evidence in an action to remove the father as guardian of his adult daughter.

In Re the Estate of Lucille Austwick, Legal Advocacy Service; Guardianship and Advocacy Commission, v. Patrick T. Murphy, Cook County Public Guardian, Illinois Appellate Court, 656 N.E.2d 773, 275 Ill.App.3d 665, 212 Ill.Dec. 176 (1995). Improper authorization for administration of psychotropic medications was not grounds for removal of public guardian, but rather was a technical error that would not be repeated. Improper consent to a Ado not resuscitate order@ was not grounds for removal of public guardian, but rather was a well-intentioned mistake that would not be repeated, where guardian had given consent after the ward had said she wanted the procedure, and guardian believed he was ratifying wards' wishes.

In re Estate of Josephine Debevec, Illinois Appellate Court, 552 N.E.2d 1043, 195 Ill.App.3d 891, 142 Ill.Dec. 302 (1990). A public guardian can be removed for reasons other than being unfit to remain as guardian; other good cause provision in the statute allows for removal where no malfeasance or misfeasance by the guardian occurs. When a sister of a ward was not given notice of the adjudication of disability where the Public Guardian of Madison County was appointed person guardian, and where the ward's preference was to have the sister as guardian, and where the sister appeared to have a good and loving relationship with the ward, then the public guardian may be removed in favor of the relative.

In re Guardianship of Escola, Ohio Appellate Court, 534 N.E.2d 866, 41 OhioApp.3d 42 (1987). To warrant the removal of a guardian, a probate court need only find that the best interests of the ward would be served by the guardian's removal.

f.  Restoration of Legal Rights

Brown v. Hoffey, Ohio Appellate Court, 645 N.E.2d 1295, 96 OhioApp.3d 724 (1994). A guardian, as a fiduciary, has two procedural paths available upon receipt of notice of motion to terminated guardianship--contest the motion or order up a psychiatric evaluation.

In re Estate of Robert Walder Thompson, Illinois Appellate Court, 542 N.E.2d 949, 186 Ill.App.3d 874, 134 Ill. Dec. 603 (1989). Ward is entitled to retain counsel for purpose of appealing denial of a petition to restore legal rights, and right to appeal may be inferred from provisions of law that allow restoration of legal rights.

In re Estate of Bernard Berger, Incompetent (Restored), Illinois Appellate Court, 520 N.E.2d 690, 166 Ill.App.3d 1045, 117 Ill.Dec. 339 (1987). Upon restoration, the restored person may have all prior accounts investigated by the court. The court's approval of the annual accounts in ex parte hearings are only prima facie evidence of the proper management of the estate; such proceedings are open to subsequent correction or challenge. Conservators' good faith does not excuse improper acts or justify defrauding wards' estate, where improper gifts and transfers were made of wards' assets to wards' daughters; trial court cannot approve or ratify acts that transcend conservators' statutory authority. Conservators' gift of $30,000 to wards' daughters to avoid inheritance taxes, where ward had an actuarial life expectancy of 22 more years, was improper.