A conservatorship, once ordered by a Superior Court judge in California, deprives a person of the right to control his or her financial affairs or person, or both.  When the judge appoints counsel for the proposed conservatee, what is the lawyer’s role?  Are the lawyer’s ordinary duties of loyalty and confidentiality diminished in the conservatorship setting?  Should they be?

These are vexing questions that have led to varying approaches in California’s 58 counties.  We sometimes represent siblings in contested conservatorship proceedings, typically in “parent custody” disputes when siblings are vying for control over Mom and/or Dad.  The approach taken by court appointed counsel is an important factor in how these cases move forward and it would be helpful to all concerned to have a more uniform approach.

How Does the Conservatorship Process Unfold?

Probate conservatorship proceedings (called “guardianship” in states other than California) begin when an interested party files a petition in Superior Court to establish a conservatorship of the person and/or estate of an adult.  The court clerk sets the petition for an initial hearing date and notice must be given to close family members.  Depending on calendaring constraints, the hearing may be set out several months from the date of filing.  In urgent situations, the petitioner will also file a petition for a temporary (interim) conservatorship and such petitions usually take at least a week or two to be heard.

Often the petitioner seeks to appoint himself or herself as conservator for a failing relative or friend, but sometimes the petitioner seeks the appointment of a private professional fiduciary to serve in that role.

Under California Probate Code section 1470 and 1471, judges are required to appoint counsel for the proposed conservatee in certain situations and have discretion to appoint counsel even when not required.  Generally, the clerk maintains a rotating list of lawyers (shown here for the probate department of Sacramento County Superior Court) who have volunteered to serve as court appointed counsel and the clerk picks counsel from the next name on the list.  It is randomized matchmaking in that the proposed conservatee is not allowed to pick from potential candidates.

California Rule of Court 7.1101 sets forth eligibility requirements for court appointed counsel.

Once appointed, the attorney will review the pleadings on file with the court, talk to the interested family members and/or their lawyers, and interview the proposed conservatee.  Meanwhile, the court’s probate investigator conducts a limited investigation and reports on the propriety of the conservatorship.

The position taken by court appointed counsel usually has a big impact on the conservatorship proceeding.  The petitioner must establish that a conservatorship is warranted by clear and convincing evidence, a heightened burden of proof, and the proposed conservatee can demand a jury trial, though such trials are rare.

So What’s the Problem?

Anne M. Rudolph and Ralph E. Hughes, attorneys with Hughes & Pizzuto APC in San Diego, recently explored the ethical duties of court appointed counsel in “A Lawyer is a Lawyer is a Lawyer,” a thoughtful and well-researched piece that appeared in Volume 25, Issue 1, of California Trusts and Estates Quarterly.

As they discuss, California law generally imposes duties of confidentiality and loyalty on attorneys without any express exception for those appointed to represent proposed conservatees.  The California Supreme Court’s recent rejection of proposed Rule of Professional Conduct 1.14, which would have given lawyers limited options to protect clients with diminished capacity, shows the court’s continued concern about loyalty and confidentiality.  The authors note, however, that “attorneys appointed to represent proposed conservatees in probate courts are routinely encouraged, and even required, to provide the courts with reports regarding their clients.”

Rudolph and Hughes argue that court appointed counsel should neither be required nor encouraged to advise the judge about what the attorney believes to be in the best interest of the conservatee, and instead should zealously advocate for the client without disclosing confidences.

Under this approach, if the proposed client opposes the conservatorship, court appointed counsel’s role presumably would be to actively defend the conservatorship petition and request a trial on it.  This path would be followed even if counsel has the personal belief that the circumstances warrant a conservatorship and that the client would benefit from it.

Rudolph and Hughes suggest that probate judges consider appointing a person to serve as guardian ad litem (“GAL”) to consider the best interests of the proposed conservatee.  The guardian ad litem, who might be a lawyer (or retain a lawyer), would serve as a special agent of the court and therefore would not owe fiduciary duties of loyalty and confidentiality to the conservatee.  Instead, the GAL would investigate the situation, assess the conservatee’s interests, and report that assessment to the court.

The conservatorship petitioner frames the presentation of the matter to the judge.  Appointment of a GAL would ensure that the judge hears two distinctive perspectives on the imposition and terms of the conservatorship: one from court appointed counsel who focuses on the client’s expressed preferences and the other from the GAL who focuses on the client’s best interests and who can report freely on communications with interested parties.

Of course, appointment of both a GAL and court appointed counsel causes increased expense to the conservatee, who ultimately pays for such services under the court’s supervision.

Conclusion

Ethical issues abound when a California lawyer has a client or prospective client with questionable mental capacity.  When appointed to represent proposed conservatees, requiring lawyers to stay true to their duties of loyalty and confidentiality provides a clearer (if sometimes unsatisfactory) line to follow.  Rudolph and Hughes aptly point out that appointment of a guardian ad litem can allow court appointed counsel to stay in his or her ethical lane while giving the court more information when making the weighty determination of whether to impose a conservatorship.

Jeffrey Galvin is an attorney with Downey Brand LLP, based in Sacramento. He litigates trust and estate cases in Northern California, including disputes involving trust and probate administration, contests of trusts and wills, and financial elder abuse claims.