Guardians Ad Litem and Attorneys Ad Litem have taken on a number of important responsibilities towards the Probate Court and towards their clients.  Those duties are not to be taken lightly and can be fraught with ethical dilemmas.  This seminar should help you recognize and successfully navigate through those difficulties.

The Guardian Ad Litem has only one client; this Court.  The Guardian As Litem is not there to represent the Petitioner, the Respondent, the proposed Conservator, or anyone else.  The Guardian Ad Litem is responsible for being the eyes and ears of this by conducting an investigation.  The investigation should be reasonably calculated to provide this Court with all the information necessary to reach an accurate conclusion on:

  1. Whether or not the Respondent is in need of a Conservator over their person, their property, or both.
  2. If so, who would be the BEST conservator.  This includes:
  3. Qualification financially should a bond be required;
  4. Qualification by way of available time, energy and resources;
  5. Qualification by way of sufficient knowledge to perform the tasks required.
  6. A snapshot of the Respondent’s resources, needs and income.

You will make a report to the Court which will also be read by all Interested Parties.  The report is due AT LEAST THREE DAYS BEFORE THE HEARING.

Let me reemphasize that.  The Guardian Ad Litem’s report should be filed with this Court no later than three working days before the hearing.  This Court is one of, if not the, busiest courts in the State of Tennessee.  Reports from Guardians Ad Litem are critical to the proper administration of conservatorships and guardianships.  This Court needs to review those reports and have them digested in advance of the hearing.  The last thing someone who rights are being taken away needs is to have any uncertainty or lack of dignity.

Likewise, if you do not think you can get your report in on time, for whatever reason, let this Court know as far in advance as is possible.  If the report is not in the hearing likely needs to be continued.  The sooner that is known, the sooner a new hearing can be rescheduled.  If there is an impediment to having the report finished, letting this Court know can be a way of clearing the impediment.

The Report of the Guardian Ad Litem should be just that, a report.  It should not be an answer because you are not representing the Respondent.  You represent this Court.  How long should the report be?  How complex is the matter?  If the Respondent is obviously in need of a conservator or guardian and the proposed fiduciary is suitable, your investigation and report should not be long.  If the matter is highly complex and facts are difficult to obtain, your investigation and report should reflect the complexity of the situation.  Remember though, you do not make the decision.  This Court makes the decision.  You make the recommendation.

Medical condition.  You are probably not doctors and you are not therefore trained to detect or understand the symptoms of medical issues that can justify a conservatorship.  For that reason, you should consider how much time and energy you should expend obtaining medical records.  Unless you know how to read them for meaning, you are wasting your time and the Respondent’s money.  For example, seeing a lab result with a out of range Creatinine level might not mean much to you.  To a physician a high Creatinine level can mean dehydration and possible kidney failure.  Dehydration can indicate potential abuse, whereas kidney failure probably results from a number of other factors.  Likewise, pus cells a red blood cells in a urine sample can be indicative of an UTI (urinary tract infection), a condition that is known to lead to sudden behavior changes.  The Report of Physician seeks the physician’s best analysis of the Respondent’s condition.  If there is some doubt about the Report it is better practice to seek an independent medical examination than to try and pick the medical records apart yourself.

There is a phenomenon known as Social Compensation that will play a factor in any amateur diagnosis.  Have you ever gone to meet the grandparent of a friend where the friend has warned you about how “strangely” that grandparent might be acting?  And, when you get there they seem perfectly normal?  This is because most people can act normal enough over a short period of time with someone who does not know them well.  Before you go off and report that the Respondent cannot possibly need a conservator, talk a little longer and be sure and read the Report of Physician.

Then you talk to someone diagnosed with Dementia, ask about important dates; birth, marriage, death of spouse, etc.  Then ask those questions again out of context and in a different order.  You might be surprised at the result.  Similarly, when you are having the same conversation again after just a moment or two, no matter how sprightly the conversation, you are seeing a sign of Dementia.  Take the time to read up a little on with whatever the Respondent has diagnosed if you are unfamiliar with it.  Not too much time, but enough to know what you might see.

A decent shorthand test for a conservatorship is:

If they are making bad decisions and they are capable of making good decisions, their decisions are their own business and they should not be burdened with a conservatorship.

If they are making bad choices and they are not capable of making good choices, they will probably benefit from a conservator to help them.

Financial information.  The order appointing you as Guardian Ad Litem will give you the authority to inspect financial records.  Use it to give the Court a picture of the financial condition of the Respondent.  Remember, a close family member seeking to be Conservator is probably just looking after a loved one.  On the other hand, they might be looking to hide a series of suspect withdrawals from mom or dad’s savings.  If a property management plan is filed, or discussed, be sure to report on that as well.

How do you go about obtaining financial information?  The amount of time and effort you put into the examination should, once again, be determined by the complexity of the case and the potential for abuse.  A good first stop should be the Petitioner’s counsel.  Counsel should have already been given a good picture of the finances of the Respondent.  This is not always the case as many older couples who are worried they might be “put away” in a nursing home are quite secretive about their finances with their children.  Some family member should at least have a notion where the Respondent banked.  A visit with the local branch should provide decent detail.  Before you go,   Some bank legal departments will require their in house counsel to say grace over the order appointing you Guardian Ad Litem before they will reveal information.  It is no use getting mad.  Send in your order and wait for the bureaucracy to get to it.  If the bank still refuses to reveal information this Court will be pleased to assist you in that regard.

A conservatorship in particular is likely to be sought at a time of major change in the Respondent’s life.  In many cases that means a move to assisted living or a long term care canter.  Such moves are usually accompanied by financial moves on the part of the family.  Some of these moves may be quite helpful to the Respondent.  Others, quite harmful. Under our TennCare Rules and federal statute, gifts made anytime within five years of the TennCare application can result in significant penalty periods during which the Respondent will be legally and financially unable to afford needed care.  Where a TennCare or a Veterans benefits spend down is being discussed, make sure you understand the potential harms and report them accordingly to this Court.  A number of states are cracking down on a once thriving “Veterans Annuity” business.  This is because highly unsuitable annuities are being sold to veterans and spouses with the promise that the annuity will make them eligible for benefits.  Unfortunately, often times the annuity will also make the couple ineligible for TennCare benefits in the likely event they will be needed.

Service.  Just about the last thing someone whose life is about to change needs is a Deputy Sheriff in full uniform with a badge and a gun handing them court papers out of the blue.  We are here to help people, not scare them.  For that reason, unless there is good reason to do otherwise, this Court expects Guardians Ad Litem to serve the Summons and Petition on the Respondent.  While you are there, you should try to explain the proceeding to them as best as they can understand it.  You are not there to scare them, so use some tact.  Be sure and remember to file the return of service.  And, be sure to serve the Respondent in time for the Respondent to retain counsel if they so desire.

If the Respondent is intending on attending the hearing put that in your report and investigate to see if anyone has plans to bring the Respondent to the hearing.  Even if the Respondent does not oppose the conservatorship, they have the right to attend their hearing and to be heard.

If the Respondent tells you they do not want a conservator (there is no choice with a guardian) you must report that to the Court at your earliest opportunity.  If an Attorney Ad Litem is to be appointed, that should occur well enough (if possible) ahead of the hearing to have the Attorney Ad Litem prepared to represent their client.  If the hearing needs to be continued, the sooner that is known, the better.

Notice to Interested Parties.  Rule 39.02 of the Local Rules of Court sets out who interested parties might be in a petition to appoint a fiduciary.

39.02 Interested Parties

 

  1. In a Conservatorship, Interested Parties include the spouse and next of kin of the respondent and the person(s) who have been primarily responsible for the respondent’s person and/or finances.

 

  1. In a Guardianship, Interested Parties include both parents of the minor, the next of kin if both parents are deceased, legal guardians and person(s) primarily responsible for the minor’s person and/or finances.

 

Check to make sure that all interested parties are notified.  If you find a close relative who has not been included on the notice list, it could be a sign of forgetfulness.  It could also be a sign that someone is anxious for some relatives to not know what is happening.

Attorney Ad Litem.  The Respondent, if there is not already a conservatorship, or the Court, may appoint an Attorney Ad Litem.  If you become the attorney for the Respondent, you have an obligation to the Respondent to represent them and make the Petitioners prove their case  by clear and convincing evidence.

That being said, you should keep Rule 1.14 of the Rules of Professional Conduct clearly in mind.

Rule 1.14. Client Under a Disability

 

(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

 

(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.

 

The Attorney Ad Litem should file an Answer, challenging the Petitioners to prove their case by clear and convincing evidence.  As Attorney Ad Litem, you represent the Respondent, not the Court, and not the Petitioners.

It is important to note that a Respondent who is already under an emergency conservatorship is still entitled to seek legal counsel.  They cannot “hire” the attorney of their choosing because that right has already been taken away.  On the other hand, their choice should be seriously considered by this Court.  There is nothing wrong with talking with a potential client/respondent before the appointment.  That being said, the request to speak with the Respondent should come from the Respondent, the family, the institution where the Respondent is staying, etc.  It is not a good practice to seek out Respondents and offer your services in most cases.

Emergency Conservatorships.  Occasionally, this Court will grant an emergency interim conservatorship.  The justifications for such action vary, but they all have to do with the immediate harm that may flow to the Respondent without a conservator.  In the case of an emergency conservatorship the emergency interim conservator will already be in place.  If you are the Guardian Ad Litem or the Attorney Ad Litem, you will need to pay attention to the emergent nature of the case and time your actions accordingly.

Getting Paid.  You might not.  Get paid, that is.  When you sign onto the Guardian Ad Litem list, you do so with the express understanding that you may not get paid for your services on occasion.  This Court makes every effort to spread the non paying cases around so that no one attorney donates too much of their time.  Nonetheless, you may find yourself getting paid in CLE hours instead of money from time to time.

When you are to be paid, you should be realistic about your hours and your hourly rate.  Remember, every penny taken away from a fiduciary estate is a penny that is not there to support a person who needs that support.  So, for instance, many of the tasks you will perform should not be compensated at your going rate, but should be capped at a (current) $150.00 per hour.  If you are performing complex evaluations of a complicated TennCare spend down and trusts, you might be justified in charging more.  Make sure you know what you are doing first.  (That is the subject of another required seminar, which is available through the Nashville Bar Association at a reduced fee.)

Attached to these materials are the Conservatorship and Guardianship specific portions of Local Rule 39.  Additionally, an excellent presentation written by Kyle Sowell, is available online from the Circuit Court Clerk’s website.  This is just a broad brush stroke introduction to your duties and responsibilities and reading helpful materials is a good idea.

 

39.02 Interested Parties

 

  1. In a Conservatorship, Interested Parties include the spouse and next of kin of the respondent and the person(s) who have been primarily responsible for the respondent’s person and/or finances.

 

  1. In a Guardianship, Interested Parties include both parents of the minor, the next of kin if both parents are deceased, legal guardians and person(s) primarily responsible for the minor’s person and/or finances.

 

 

# 39.05 – Conservatorships:

 

  1. Petition for Conservatorship: The petition shall be verified and contain the information required by statute and these Rules. Service of Process shall be provided to the respondent as required by statute and petitioner shall additionally provide Notice to all Interested Parties who do not receive notice from the Clerk. an order (in the form required by the Court) shall be submitted with the petition containing the appropriate blanks for the appointment of a Guardian ad litem and the setting of a hearing. the Court will appoint a licensed attorney as the Guardian ad litem and designate the hearing date. The Property Management Plan does not need to be filed with the Petition; however, the Property Management Plan shall be filed with copies provided to all Interested Parties including the Guardian ad litem no less than three (3) days prior to the hearing on the Petition, unless good cause is shown why such could not be done.
  2. Orders Creating Conservatorship and Awarding Initial Fees: To expedite the issuance of Letters of Conservatorship, counsel for the petitioner may submit two orders, one pertaining to the appointment of the conservator and a second which pertains only to fees.

 

# 39.06 – Guardianships:

 

  1. Petition for Guardianship: The petition shall be verified and shall contain the information required by statute and these Rules. Notice shall be provided to all Interested Parties. Unless the petitioner is a parent of the minor or is a court appointed guardian of the person, the Court will appoint a licensed attorney as Guardian ad litem. When applicable and to facilitate such appointment, an order (in the form required by the Court) shall be submitted for the appointment of a Guardian ad litem. If the petitioner is a parent of the minor or court appointed guardian of the person, the petitioner may set the matter for hearing prior to the appointment of a guardian ad litem; however, if the Court determines at the hearing that the appointment of a Guardian ad litem may be in the best interest of the minor, the matter shall be set for further hearing following the appointment of a Guardian ad litem.
  2. Orders Creating Guardianship and Awarding Initial Fees: To expedite the issuance of Letters of Guardianship, counsel for the petitioner may submit two orders, one pertaining to the appointment of the guardian and a second which pertains only to fees.

 

 

 

39.10 – Guardian ad litem:

 

  1. The Court will appoint a Guardian ad litem upon the filing of a petition to appoint a conservator or guardian; provided, however, in proceedings to appoint a guardian, the Court may waive the appointment of a Guardian ad litem if good cause is shown.
  2. The Court may appoint a Guardian ad litem in matters involving the sale, improvement, or mortgage of any real property in which a minor or other person under disability has an interest; in matters involving the sale or disposition of ward’s personal property; in matters involving possible impropriety by a fiduciary; in matters concerning unauthorized encroachments or questionable management of a decedent’s estate or award’s assets under guardianships or conservatorships; in any matter the Court believes to be in the best interest of a minor, incompetent, absentee, unknown heir or Interested Party or to further the administration of justice.
  3. The Guardian ad litem shall conduct an inquiry and file a report with the Court at least three (3) days prior to the hearing. The report shall contain the information required by statute and these Rules and such additional information the Court may require or the Guardian ad litem deems necessary. Reports are to be brief and to the point unless the complexities of the case require greater detail.

 

 

39.14 – Fees of Fiduciaries and Attorneys:

 

  1. Court Approval of Fees:

 

  1. Conservatorships and Guardianships. In conservatorships and guardianships only, any person or party, whether the conservator, guardian, attorney, petitioner, guardian ad litem or whomever, requesting that fees or expenses be charged against or paid by the respondent, ward or their estate, shall obtain approval of the Court prior to payment or receipt of such fee. Any person who pays any such fee out of the funds of a minor, incompetent, respondent or ward in a conservatorship or guardianship without express Court approval may be personally liable for the funds advanced and reasonable and necessary costs, fees and expenses resulting from such unauthorized disbursement.
  2. When Motion Is Required. In those matters for which a motion is required, motions for fees, expenses and/or costs to be charged against a ward’s or decedent’s estate or against an adverse party shall be filed, served and docketed according to Local Rule 26 and 39.13, provided however, such motions shall not be deemed granted merely because a written response is not filed. The Court has the responsibility to determine whether such fees are reasonable and necessary whether or not a response is filed. If a written response is timely filed, a hearing on the motion shall be conducted. If no response is filed, neither the person applying for a fee nor their attorney need appear in Court to present the motion. The Court will review the motion and affidavit(s) supporting the fee request and act upon the fee request without a hearing. After reviewing the motion and affidavit(s), if the Court desires a hearing or additional information, the Court shall notify the applicant of the necessity of a hearing or additional information. Notice of the hearing shall expressly provide in bold:

 

THIS MOTION IS EXPECTED TO BE HEARD AT 10:00 A.M. ON FRIDAY _________, 20__ IN COURTROOM 408; HOWEVER, IF A WRITTEN RESPONSE IS NOT FILED BY THE END OF BUSINESS ON THE MONDAY PRECEDING THE HEARING DATE, THE COURT WILL REVIEW THE FEE REQUEST WITHOUT THE NECESSITY OF A HEARING.

 

  1. When Motion is Not Required-“Fee Application”. On certain occasions (with the prior direction from the Court), fees and expenses may be applied for without the necessity of filing a motion and docketing the matter for a hearing; nevertheless, in all such situations copies of the fee request and all documents attached thereto shall be served upon all Interested Parties even though no hearing is to be scheduled. Specifically, at the conclusion of hearings in which the Court approves a petition to create a conservatorship, guardianship and in certain other instances expressly directed by the Court, the Court may direct the person and parties who wish to be reimbursed their expenses and paid their reasonable and necessary fees incurred to date, to file a “Fee Application” in lieu of a motion. The Fee Application shall be served upon Interested Parties, along with the supporting documents, with the notice that the Court shall review and act upon the Fee Application without the necessity of a hearing. Unless one is expressly directed by the Court to file a Fee Application in lieu of a motion, all fee and expense requests should be presented by motion pursuant to Local Rule 26 with appropriate notice of a proposed hearing date.
  2. Form of Motion and Fee Application. Fee requests shall be set forth in a manner similar to the applicable form(s) recommended by the Court, which may be obtained from the Clerk. The Motion or Fee Application shall state the fee requested, hours worked, hourly rate charged, and total of expenses requested, if any, along with such other facts as may be necessary to support the fees and/or expenses requested. The Motion or Fee Application shall be supported by appropriate affidavits, receipts, if applicable, and billing statement. All billing statements or affidavits shall itemize a brief description of the services rendered, the time expended and date of service, respectively. The person requesting a fee has the burden of proof to establish the reasonableness and necessity of the fee and why such fee and related expenses should be charged against a decedent’s estate or a ward of a conservatorship or guardianship.