An attorney is the guardian of a person's voice in court

Adult guardianship cases are kind of a big deal. And sometimes, they’re difficult.

On one side you have the Respondent. This is typically someone who has some kind of dementia, mental health issue, or medical issue which renders them unable to handle their own affairs. Oftentimes they are in danger of losing such essentials as housing, public benefits, or life savings, if someone doesn’t step in and help out.

On the other side you have the Petitioner. This is typically a family member or friend, or sometimes a government agency, which is concerned about the Respondent and is calling on the judge to step in and make sure the Respondent’s life isn’t ruined.

Put in those terms, it sounds very easy for a judge to order a guardianship. But there is another aspect to this. The Respondent is at risk of losing the most fundamental freedoms any of us have. This person, often an elder, can have control of his or her life savings, and ongoing income, taken away. They can even lose the rights to make their own medical decisions, to decide where to live, to travel, and to see family members.

So to protect these fundamental freedoms, there are a number of procedural requirements before the judge can grant a guardianship. The judge has to hold a hearing, and the Respondent is entitled to be there. There must be an investigation of the case by a social worker who files a report with the court. If the judge believes the guardianship is justified, he or she must make specific findings, and the burden of proof is on the Petitioner to prove that this is really necessary.

And in Alaska, we have one additional protection which not all states have: the judge must appoint an attorney to represent the Respondent.

I used to take a lot of these court appointments, back in the day (I don’t anymore). They were not always easy. As the appointed attorney for the Respondent, it was not my job to decide what that person needed. It was my job to figure out what he or she wanted, and then to be their advocate, their voice in court.

This necessarily meant that sometimes, I was going to be obligated to argue a position which was plainly not in the Respondent’s best interest. When you’re a trial lawyer, and you are used to arguing cases to try to win, it is not easy to make an argument that is a sure loser. I will never forget, for example, arguing against guardianship for a severely schizophrenic client who insisted, against all reason, that he did not need to have a growth removed because it was “just a boil” (a biopsy had shown it was in fact a malignant cancerous growth that was approaching his lymphatic system). I had to argue that he did not need a guardian because he was able to make his own decisions, because that is what he insisted on. Naturally, I lost that case.

But I made my peace with this a long time ago. In a guardianship case, there are plenty of people arguing for what is in the best interest of the Respondent. That appointed social worker has made a recommendation based on her perception of that person’s best interest. The Petitioner is concerned about the person’s best interest; that’s why they filed the petition in the first place. There may be other witnesses, participants, or medical professionals advocating for what they think is in the person’s best interest. My part in the case was not to be just another voice in the chorus. I was there to make sure the Respondent’s desires were validated and heard. I had to trust the system, imperfect as it may be, to come up with the right answer at the end of the case.

This also meant that I was not always a popular person in the courtroom. A well-meaning Petitioner might be very frustrated with my insistence on cross-examining witnesses, raising objections to evidence, and doing all the other normal things trial lawyers do. From the Petitioner’s point of view, he or she was just trying to do the right thing by somebody they cared about. But again, my job was not to make myself popular in court, but to fulfill a particular function within the system.

Unfortunately, the quality of the attorneys who are appointed to represent the Respondent is a bit hit-and-miss. The cases are spread out among quite a few different attorneys, and some of them do not have the same philosophy I had. I can remember a number of very disturbing cases in which the attorney who was appointed to represent the Respondent punked out and argued for what the attorney thought was in the Respondent’s best interest, instead of what the Respondent wanted.

Unfortunately, the statutes actually make this fairly easy for them to do, because if the attorney thinks that the Respondent is not able to make rational decisions, the attorney can simply tell the judge that the attorney has decided to act as a “guardian ad litem”. A GAL is free to argue for whatever he or she thinks is in the best interest of the Respondent. But the moment the attorney assumes GAL powers, the Respondent has lost his or her voice in court.

I have seen some pretty egregious cases of this. For example, I was once asked to take over a case for a fellow whose wife had asked to be appointed as his guardian. Just a few weeks before I was hired, the appointed attorney for the Respondent had announced at the hearing that the Respondent was so far gone that he was unable to even understand the proceedings. The attorney then assumed GAL powers and argued against the wife being appointed as guardian. Two weeks later, when I was brought into the case, I called the Respondent at the assisted-living home. He was actually quite lucid, and would easily have been able to understand the proceedings. And as you might guess, he actually wanted his wife appointed as guardian.

A few years later, I watched that same attorney, in another case, agree that the judge should order that her client be forced to take psychiatric medications, which her client clearly did not want.

Recently I saw an attorney in Fairbanks assume GAL powers, when he had not even bothered to arrange a translator when he talked to his client (who spoke some English but was struggling with our language, post-stroke). There was an issue about whether the Respondent needed to be brought to the hearing; under the statutes the Respondent had the right to be there unless she would be disruptive. Confronted with that statute, the attorney suggested that possibly she would be disruptive, and the judge accepted his statement at face value. A few hours after the hearing, some of the parties to the case took the Respondent out to lunch, and she was not at all disruptive. It was just a cheap excuse to avoid having the client there to potentially contradict her own attorney.

In all of those cases, and several others I have seen where the attorney was not fulfilling his or her duty to the client, the deficiencies in representation were complained of to the judge. And in all those cases, the judges more-or-less shrugged and said they would leave that decision up to the appointed attorney. And all of those clients lost what should have been their voice in court.

What is the solution to that problem? For one thing, the legislature could tighten up the statute so that before the attorney can assume GAL powers, the judge must really look at the situation and determine that the Respondent is truly not able to participate or express an opinion about the proceedings.

But the authority is already there, if the judge wants to exercise it. It is not the statutes which are deficient, but the willingness of the judges to enforce the statutes. So really all that needs to happen is that the judges who hear these cases need to have more respect for the right of the Respondent to have a voice in the proceedings.

Because after all, if it was you at the Respondent’s table – and it easily could be, some day – wouldn’t you want a voice?

Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account.

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