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a. Power of Attorney/Guardian Conflicts

In the Matter of Elsie Verlene Swearingen, Missouri Appellate Court, 42 S.W. 3d 741, 2001 Mo. App. Lexis 198 (2001). In 1998, a Probate Court appointed a daughter to serve as guardian of her mother’s person, but not conservator of the mother’s estate. The court declined to name the daughter conservator, due to an apparent conflict of interest, and instead named the mother’s attorney as conservator. Prior to these adjudications, the mother in 1993 had opened a joint investment account (joint tenants with rights of survivorship and not as tenants in common) valued at about $400,000 with her grandson in 1993. This joint agreement appointed the mother and her grandson as the agent and attorney-in-fact for each other. In October 1995, at age 75, the mother was diagnosed with Alzheimer’s Disease. One month later, the mother executed a durable power of attorney naming the daughter as attorney-in-fact. Relying on this agency agreement, the daughter sued an investment company and the grandson in January 1997 to obtain control over the assets. In October 1999, the Probate Court held that the daughter lacked standing to bring her suit. The trial court considered her status as guardian of the person, along with her individual status and that of attorney-in-fact and found no legally protectable interest in her mother’s joint account. In rejecting her claim, the trial court held that only the conservator had standing to discover or recover assets. The appellate court affirmed the decision, finding the probate court’s appointment of a conservator to have negated the daughter’s authority under the power of attorney, and concluding that only the conservator had authority to petition to discover assets.

In the matter of the Guardianship and Protective Placement of Murial K., Alleged Incompetent, Wisconsin Appellate Court, 2001 WI App 147, 2001 Wisc. App. Lexis 566 (2001). Murial K was the subject of an elder abuse referral in November 1999. shortly after that, a guardianship petition was filed, and the court appointed temporary guardians of the person and estate and suspended all prior powers of attorney. Murial K had a large estate, and in June of 1999 had executed a Durable Power of Attorney to Jeffrey Knight, her longtime groundskeeper, noting that the powers granted “shall not be affected by (her) subsequent disability or incapacity.” In late September of 1999, Murial K granted Norris and Jeffrey Knight a power of attorney for health care. The trial court found Murial K to have been neglected by her caregivers and purported agents, and denied their requests to reinstate their authority. The appellate court affirmed and further held that the Knights had no standing to pursue an appeal, since their status as attorney-in-fact had been severed by the trial court.

In Re Conservatorship of Anderson, Nebraska Supreme Court, 262 Neb. 51, 628 N.W.2d 233, 2001 Neb Lexis 113 (2001).A bank was appointed conservator of the estate of Mr. Anderson, a protected person, and two attorneys-in-fact under a previous power of attorney objected. The court concluded that ‘no gift may be made by an attorney in fact to himself or herself unless the power to make such a gift is expressly granted in the instrument itself and there is shown a clear intent on the part of the principal to make such a gift.’ (citations) The two agents had made gifts totaling $100,000 during 1999 and 1990, arguing that they were part of a pre-existing gifting program and benefited the estate by reducing estate taxes. The power of attorney agreement did not authorize the gifts. The trial court found a conservatorship and revocation of the power of attorney to be necessary and the appellate court affirmed.

b. Guardian as Necessary Party – Ward’s Petition for Conditional Release From State Institution

Allen Preston v. State of Missouri, Missouri Appellate Court, 33 S.W. 3d 574, 2000 Mo. App. Lexis 1528 (2000). Although a guardian is not required to join in a petition brought by a ward for conditional release from a secure state operated mental health facility, the guardian must at least be joined as a necessary party in the matter, a jurisdictional requirement in considering the matter. “The guardian has a statutorily created interest in a ward’s conditional release proceeding, which would be impaired or impeded by the guardian’s absence there from.”

c. Guardian as Necessary Party – Administrative Hearing Related to Ward Abuse

Tiano v. Palmer, as Director of Iowa Dept. of Human Services, et al., Iowa Supreme Court 2001, 621 N.W. 2d 420, Iowa Sup. Lexis 14 (2001). The Iowa Human Services Department conducted an administrative hearing to review a decision that placed the names of abusing caretakers in a state registry, without providing notice or an opportunity to be heard to the parents and guardian of the alleged victim of abuse. At the administrative hearing, the Department withdrew the findings of abuse and settled the case, and a lower court supported the decision, finding that the guardian had no standing to participate in the administrative hearing. The Supreme Court overturned this decision, and concluded that a guardian had standing to participate and was entitled to notice of the hearing.

d. Guardian’s Right to Notification/ Involvement In P&A Investigation

Iowa Protection and Advocacy Services, Inc. v. Gerard Treatment Programs L.L.C., U.S. Dist. Ct. ND Iowa, 2001 U.S. Dist. LEXIS 8918 (2001). A residential care facility argued that guardians or legal representatives must be allowed to be present during any interviews by IPAS, the Iowa Protection and Advocacy Service. The court, relying on the Protection and Advocacy for Individuals With Mental Illness Act, 42 U.S.C.S. Sec. 6000 et seq., found that guardians or other representatives had no right to prevent, be present at, or to terminate such interviews. The court hastened to add that IPAS should not take a "high-handed" approach to excluding parents or legal guardians from interviews or from the decision making process concerning whether interviews of specific residents are necessary. IPAS is encouraged to involve parents and guardians in these parts of its investigation in furtherance of the interest in family involvement articulated, for example, in the 1991 amendments to the PAMII Act, (citations.)

Wisconsin Coalition for Advocacy, Inc. v. Czaplewski, U.S. District Court ED Wisconsin, 131 F. Supp. 2d 1039, 1051 (E.D. Wis. 2001). The District Court for the Eastern District of Wisconsin, in another case by a P & A seeking injunctive relief to obtain access to records under the PAMII Act, held that the plaintiff P & A had the right to access resident records over the objections of a care facility, including those of a deceased resident under guardianship, notwithstanding the fact that the allegations of abuse and neglect concerning the deceased ward and another resident had been thoroughly investigated by other agencies and that the P & A's investigation would likewise reveal, if it had not already, that the deaths of the two residents were not the result of abuse or neglect. The court rejected the defendant's arguments, because the court concluded “that the defendant's refusal to provide the P & A with records that it is entitled to review (indeed, charged to review as a part of its responsibilities) does, in a very real and readily identifiable way, pose a threat to the P & A's being able to discharge its obligations and no amount of damages will remedy that sustained harm.”

In Re Guardianship of Heidlebaugh (Rankin ex rel. Heidlebaugh v. Heidlebaugh), Illinois Appellate Court, 321 Ill. App. 3d 255, 747 N.E. 2d 483, 254 Ill. Dec. 443, 2001 Ill. App. Lexis 282 (2001). As the appellate court poignantly wrote, “On the morning of May 22, 1996, Joe Heidlebaugh’s (parents) placed him on the bus so that he could be taken to the workshop he had been attending for five years. Joe did not get off the bus that evening. Instead, the driver of the bus handed Darlene a note that said Joe would not be coming home. No one told (the parents) where Joe had been taken. This case is about the necessity of sanctions for the conduct involved in these and related actions.” After the school bus incident, the state Protection and Advocacy designee pursued an order of protection and also represented Joe in relation to guardianship proceedings initiated by the father. Joe’s father was appointed guardian by a disapproving trial court. There was no evidence of the workshop or P&A having contacted the parents to inform them of any problems or concerns prior to instituting legal proceedings. In a derisively worded decision, a trial court chastised Equip for Equality, the Illinois Protection and Advocacy designee, and the human services agency that operated a workshop for persons with disabilities. Among other things, the P&A and its attorney were castigated for acting in a “high-handed manner” and their “self-righteous” manner in pursuit of what they saw as the rights of a person they sought to protect. However, the trial court declined to award sanctions against the P&A and its attorney. The appellate court found the trial court’s refusal of imposition of sanctions against the P&A’s attorney and her employer to be an abuse of the trial court’s discretion, reversed the trial court’s decision, and remanded the matter to determine the amount of sanctions. The appellate court found the conduct engaged in by the attorney (“specific (legal) maneuvers, stealthily accomplished, in an attempt to further the goals of the agency”) to be sanctionable within the meaning of the Supreme Court Rule, and found that the P&A could also be sanctioned under an agent-principal theory.

e. Confidentiality; P & A’s Right To Access Records

Pennsylvania Protection & Advocacy, Inc. v. Houstoun 2000 U.S. App. LEXIS 24790, 3rd Circ., October 3, 2000. Investigating the death of a mentally ill inpatient who committed suicide, Protection and Advocacy Office was entitled to review the state operated facility’s peer review documents about the incident. The state argued that state law prohibited release of peer review materials, but the 3rd Circuit, upholding the District Court, found that the Protection and Advocacy for Mentally Ill Individuals Act, which granted the designated state advocacy agency broad access to all “records,” the definition of which included such reports, preempted state law.