Competency and Longevity: A Brief Look at the Sorensen decision

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Yesterday morning I attended the Colorado Guardianship Association bimonthly education program at Porter Place.  It was an excellent panel on a very interesting topic:  The Sorensen case and issues related to capacity and competency in the context of different types of litigation (domestic relations, probate, criminal and general civil matters).  The three well-versed presenters were Ginny Frazer-Abel, Tammy Conover and Rick Spiegle.

The Sorenson case (In re Marriage of Sorensen, 166 P.3d 254 (Colo. App. 2007) is an important case relating to the protection of a person’s rights in a dissolution of marriage proceeding. The case concerned the limits of the trial court’s discretionary authority to appoint a guardian ad litem (GAL) for a spouse allegedly suffering from a mental illness during a domestic relations proceeding.

Let’s dispense with a definitional detour first – what is a GAL?  Black’s Online Law Dictionary (2nd ed.) defines guardian ad litem (GAL) as follows:

“The party the court deems responsible for an incapacitated, handicapped, or minor in court.” Black’s goes on to defines “ad litem” as meaning “for the suit; for the purposes of the suit; pending the suit.” Thus, a GAL is responsible for an incapacitated person during a suit or case.  A GAL can work on behalf of an incapacitated adult, someone deemed incompetent, or a person under a legal disability, like a minor.

Back to Sorensen. . . .

After going through two different attorneys in the dissolution matter (wife’s first attorney moved for appointment of a GAL based on mental health concerns) and a third retained for post-decree proceedings, the Colorado Court of Appeals held that

A court should appoint a guardian ad litem for a litigant when the court is reasonably convinced that the party is not mentally competent effectively to participate in the proceeding. People in Interest of M.M., 726 P.2d 1108, 1118 (Colo. 1986); see C.R.C.P. 17(c). That rule states, in pertinent part that “[t]he court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.”

In re Marriage of Sorensen, 166 P.3d at 256.  The decision noted the exceptional circumstances and also discussed Colorado Rules of Professional Conduct 1.14 in such a scenario, noting that the rule permits an attorney to seek appointment of a GAL where an attorney reasonably believes that the client is unable to act in his or her own interests.

The procedure and circumstances under which a GAL is appointed vary according to the circumstances in which the appointment of a GAL is sought and the nature of the proceedings affecting the person about whom there is concern for competency or capacity to make decisions.  The legal context is important because it often has direct bearing on the extent to which a person is able to fully participate in and comply with legal proceedings affecting that person’s rights.  When an attorney represents a client, many duties are owed to that client, and our ethics rules, the Colorado rules of Professional Conduct, provide the rules of reason for the appropriate minimum standards for attorney conduct.  This makes it a bit tricky when an attorney represents someone who, the attorney may come to learn and reasonably believe, lacks the ability to understand the choices presented by the legal proceeding involved as well as the consequences of such choices.

As described in the quote from Sorensen above, when an attorney suspects that his or her client is lacking in capacity or competency to make decisions, there are a number of difficulties which must be overcome, including the duty of confidentiality, which looms large in any revelation by a motion to a court that a client (or party to a proceeding) needs an appointment of a GAL to represent the person’s best interests.  Ginny Frazer-Abel insightfully observed that when an attorney suggests that their client needs a GAL, the attorney usually gets fired!  This is indicated by the Sorensen case as well.

So what does an attorney need to demonstrate to a court to get a GAL appointed for someone who needs assistance (but may not realize it or may reject such help)?

For a client or potential client who is incapacitated, that special rule of professional conduct (1.14) applies where the attorney may need to take measures to protect the person’s interests.  One of these measures might include seeking the appointment of a GAL or it could include a range of other protective actions when a client or prospective client appears to be unable to act in his or her own best interests.  Some of the ways in which incapacity and competency are addressed in different areas of law include in the probate context:

Incapacity such that it is appropriate for the appointment of a guardian for an incapacitated person;

Inability to manage ones finances such that the appointment of a conservator is appropriate;

Both of the above considerations consider a person’s functional capacity to perform various activities of daily living.

Competency also factors into criminal proceedings in which a defendant may suffer from an impaired mental condition which prevents (prevented) the person from forming the requisite “mens rea” or culpable intent that is an essential element of a crime.  This is addressed in the article pertaining to insanity under the Colorado Code of Criminal Procedure, at Colo. Rev. Stat. §16-8-102 et seq.

What kind of report does it take to get a GAL appointed for someone? Here I am talking about an adult, a person presumed to have legal capacity, who may be demonstrating to their attorney or a party to a matter that the person is in need of protection because there are difficulties in processing information or otherwise behaving in ways that indicate they are making their own considered choices.

The kinds of evaluations performed by medical and mental health professional vary considerably and typically depend on the context of the court as well as the type of proceedings in which a person is involved.  For example, a person who is the subject of a guardianship proceeding will typically undergo an exam that is  much different from one performed where a person is a defendant on a criminal charge.  It is crucial to note that there are many problematic issues around mental illness, and there may be other domestic relations proceedings (like Sorensen) in which there is a long term marriage and the person on whose behalf a GAL is sought stands to lose many things to which they might otherwise be entitled.  The procedures and presumptions between probate proceedings relating to incapacity or lack of competence to manage financial affairs are often at odds with procedures and presumptions in the mental health context.  Stay tuned for more on this particular topic. . .

©Barbara Cashman  2015   www.DenverElderLaw.org

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The Importance of Solo and Small Firm Attorney Disability and Estate Planning- part 1

My Old Girl

My Old Girl

Well, it seems my Solo Attorney Estate Plan posts are few and far between!  Strange when I consider that I have usually presented on the topic at continuing legal education (CLE) programs at least a couple times a year.  I’m always updating my materials (and looking for more cartoons about death and dying) and am particularly grateful to my colleague Mark Masters, a community resource for trust and estate lawyers who is of counsel at Glatstein & O’Brien. Mark was kind enough in December to take a close look at my forms that I use in my CLE presentations to get the planning going.  Though I have shared these forms over the years with dozens of attorneys, I am always looking for comments and suggestions.    I will be presenting on Friday at the ABI Rocky Mountain Bankruptcy Conference, January 23, 2015 as a panel member of Consumer Workshop III: Practical and Ethical Issues in Succession Planning. 

The other panel members include Charles “Chip” Mortimer, Jr. from the Office of Attorney Regulation Counsel, Colorado Supreme Court, Mark Dennis, of Dennis & Co., P.C. and our moderator, Nancy Miller, of Nemirow Perez. 

As an estate and elder law attorney, I am familiar with detour, dissolution, disability and death.  I am one of a small number (as far as I can tell) of attorneys who has a plan of some sort in place.  Fact is, most people put off thinking about these things and making plans.  I think it proves that lawyers are people too.  What are the barriers to making a plan?  Well, there are many.  There is the first hurdle of the emotional issues we face in coming to terms with uncertain certainties (death) and certain uncertainties (some catastrophe or a disability of a physical or cognitive variety).  This freezes many of us right in our tracks.  It may be the biggest reason that most people die without any estate plan in place.  Perhaps you have heard the estate planners’ adage about the people most in need of estate planning (people with young children and small business owners) being the least likely to have it?  Many of us, especially the solo and small firm types, have kids or family members who depend on us and our law practice as a source of income.  We need to make our own plans.

I don’t like to scare people, and so that is one of the reasons I share my forms – it’s kind of a “hey kids, try this at home” approach. For this post I will begin with the end in mind – yes, the plan itself, and a few documents that are must haves.  Where to start? Well, I recommend Rudyard Kipling’s six honest serving men to help overcome that most potent physical and psychological force – inertia:

I keep six honest serving-men

 (They taught me all I knew);

Their names are What and Why and When

 And How and Where and Who.

 . . .

The Elephant’s Child, by Rudyard Kipling.

Let’s start at the beginning with WHAT. . . this is the most important part to begin with.  What do you want to happen in the event of your disability, incapacity or death?  You as the person making the plan will sometimes be referred to as the planning attorney or the affected lawyer.  I know, the second moniker doesn’t sound so nice.  The person you have selected to help you will be known as the assisting lawyer.  Here are a few questions to get the ball rolling.

  • What will happen if you become disabled? Begin with a conversation with another lawyer or perhaps a staff member about how to make arrangements for you, a/k/a your law firm, as an affected lawyer or law firm to continue, close, or transfer your practice on your behalf.
  • What can you put in place to cover your disability? Have appropriate powers of attorney in place so that your assisting lawyer(s) can step in if needed to run your practice. They will need to be able to sign checks, handle the COLTAF accounts, manage employees, and generally conduct your law practice business on your behalf.
  • What will happen to your law practice upon your death? Consider naming at least one personal representative in your will who is a lawyer to be charged with the responsibility of selling or closing the practice.
  • What can you do now that could help your assisting attorney? Maintain an easily understandable system of client records to help the assisting or successor lawyer to carry out his or her responsibilities.

Sure, there’s the detail of how your assisting attorney will get paid, but don’t let that detail hold you back!

 

The second serving man is WHY.

Think of this planning as putting in place a management plan.  Even if you don’t have a business plan, let alone a management plan for your current practice, it is imperative that you get one for these “if” and the “when” scenarios.  Think of the plan as putting together a management team.  They will manage according to the plan you have put in place.

Whether you have a plan [or not] should be a conscious choice.  I know this sounds familiar to all of you reading this because, well . . .  many of us do this planning for a living and some of us do litigation when there wasn’t a plan or a badly constructed plan.  So, at the risk of singling you out as your own cautionary tale, wouldn’t you rather make a conscious and deliberate decision?  It doesn’t have to be perfect and it can be changed and updated as needed. What it is that fits your goals, personality, your business plan and your longevity and estate planning goals? Most of us would rather be in charge of deciding this and not leaving it to be a burden on someone else.  Here are a few “why” things to consider – just in case you forgot that you have to think about the same things as your clients:

  • Longevity planning (for incapacity or disability to avoid guardianship, conservatorship or OARC appointment of inventory counsel)
  • Making a will or trust that addresses or has provision relating to your law practice
  • Tax issues
  • Providing for some financial management in the event the firm can go on without you
  • Caring for and protecting beneficiaries with a stream of income or other benefit they might be depending on
  • Considering carefully and choosing your key people: agents, assisting lawyers, personal representatives, trustees, etc.
  • Maintaining privacy and confidentiality during times of uncertainty or transition
  • Ensuring there is no breach of fiduciary duty owed to clients by the lawyer or law firm

 

Kipling’s third serving man is WHEN.

There is no time like the present!  Some would argue that there is no other time besides the present, that the rest of it is . . . theoretical.  So get busy and start now.

That’s all I can fit in this post for now. . . .  stay tuned for the continuation!

©Barbara Cashman  2015   www.DenverElderLaw.org