Ethics Advisory Opinions

Opinion 2002-0003 - Simultaneous Appointment as Guardian for Both Spouses or Domestic Partners

Ethics Advisory Opinion: #2002-03: Simultaneous Appointment as Guardian for Both Spouses or Domestic Partners

Date Approved by the Certified Professional Guardian Board: April 12, 2004

Statement of Questions Posed:

 

1. May a Certified Professional Guardian or Agency (Guardian) be appointed to provide concurrent, dual or joint representation on behalf of both spouses, domestic partners or persons living in a meretricious relationship? If so, under what circumstances is this appropriate?

    

    

2. What criteria should a Guardian apply in determining whether the Guardian should accept a dual appointment; or if already appointed, should the Guardian continue to act on behalf of both persons in a relationship as described above?

    

    

3. What procedural steps ought to be followed if the Guardian believes that dual representation is appropriate under the facts of the case, or in order to continue serving when in such a relationship and an actual, apparent or potential conflict of interest arises?

    

Summary of Opinion: The appointment of the same Guardian to act simultaneously in the best interests of both spouses in a marital relationship, domestic partners, or persons in a meretricious relationship presents, at a minimum, the appearance of a potential conflict of interest, and should only be done with great caution by a Guardian. Even if the parties are not married, appellate case decisions have implied and applied certain community property principles to such relationships and legal presumptions may apply. The issues are complex and the circumstances dynamic. Often, actual conflicts may not become apparent until it is too late to seek instruction from the court or for the Guardian to take remedial action. The advice of counsel should be sought prior to accepting such an appointment.

While a court may consider a well supported petition for a dual Guardian, endorsed by the Guardian ad Litem for one or each of the alleged incapacitated persons, the circumstances upon which the decision was based could change quickly or unknowingly and present a conflict of interest necessitating the removal of the dual guardian from both cases and two new independent Guardians being appointed. The latter action would foreseeably result in significant additional costs to the estate of the incapacitated person and potentially to the retiring Guardian as well. Only in well-justified cases and after a hearing supported by recommendations of the Guardians ad Litem for each of the alleged incapacitated persons, and assurance that there would be only de minimus conflicts should a Guardian accept such an appointment.

ANALYSIS:

A guardian, in any case, has a fiduciary duty to the adjudicated incapacitated person (IP) to manage the personal affairs and/or estate of the IP for the benefit of the IP. On its face, an appointment of a guardian for both spouses creates a divided loyalty in the duties of the guardian in that he/she must manage the community and separate estates of both IPs for their individual benefit. While such an arrangement may potentially or financially benefit both spouses or partners, the appearance of potential conflict, and the likelihood of an eventual conflict of interest is substantial.

The court at any hearing to appoint a single guardian for a married couple or for domestic partners will likely initially view the petition with concern. The reason for the court’s skepticism is that in any guardianship appointment, the court is delegating its duty and authority to oversee the personal and financial matters of individual, vulnerable incapacitated persons to a guardian. Lawyers, judges and court commissioners are by training and experience, highly sensitized to conflict of interest situations and to the appearance of such conflicts.

At the hearing on the petition, the court will review the guardian ad litem (GAL) report and the petition. It will ensure that full disclosure of all known conflicts has occurred and that consents/waivers have been addressed as appropriate. The court will engage the parties named above in colloquy on the record to ensure that all interests are identified and balanced. As in nearly all guardianship hearings, the court will weigh the GAL’s report and recommendations on all issues, including the appropriateness of the proposed guardian. While the issues will be similar to those conflict issues arising as to spouses, domestic partners will not necessarily have the same legal presumptions afforded married couples. A Guardian should obtain the advice of counsel when considering these issues prior to accepting such an appointment.

Below is a nonexclusive list of examples and circumstances that present an appearance of potential or actual conflicts of interest for a guardian considering such an appointment.

1) One or both spouses or partners having children from prior relationships.

2) Lack of stability and length of the marriage/relationship.

3) The presence of or lack of an estate plan made by the couple while both members were still competent.

4) Separate property owned by the spouses or partners or the expectancy of inheritance by either.

5) Presence or lack of a community property or other written agreement or of a marital relationship.

6) Eligibility for benefits, such as Medicaid and spend-down/gifting issues.

7) Residential decisions and the source of funds to pay home mortgage and upkeep costs, assisted living, or long term care costs.

8) Guardian billing and accountings submitted to the court.

9) End-of-life decisions in the absence of competently and jointly executed health care directives.

Nonexclusive examples of circumstances where the court may consider a single guardian for a couple may be when:

1) There is a competently and mutually executed pre-guardianship estate plan that contemplates the eventual incapacity of one or both spouses or partners that provides resolution to possible conflicts.

2) There is a long-term marriage with both spouses or partners in a care facility and the parties have little or no estate and have competently executed health care directives.

Again, remember that the issues for married couples will likely differ in some respects from those of domestic partners due primarily to the existence of a marital relationship.

In any circumstances where the same guardian serves both spouses or partners, there is always the possibility of a conflict going unrealized until it is too late and something like the death of one of the spouses obviates the issue. Such circumstances can place the guardian and the incapacitated persons in an unworkable situation ethically and practically, often resulting in expensive litigation naming the guardian personally as a defendant or other party.

The guardian in any case should not wait after sensing a possible conflict of interest. Counsel should be consulted immediately and a filed request for instructions from the court can assist in identifying, disclosing, and resolving conflict of interest issues at a hearing with all concerned parties present. Such issues will be decided on a case-by-case basis, and the guardian’s vigilance and anticipation of potential conflicts will be expected by the court.

APPENDIX A-1

References:

Estate of Sullivan v Brashear, 2003 Wn.App. LEXIS 509 (March 31, 2003), (Unpublished opinion, Petition for Review filed November 10, 2003.)

In re Mignerey, 11 Wn.2d 42, 118 P.2d 440 (1941.)

In re Denisson, 197 Wash. 265, 84 P.2d 1024 (1938.)

Chapter 11.88, Revised Code of Washington

Chapter 11.92, Revised Code of Washington

Rules of Professional Conduct (for attorneys), RPC 1.7

Degel, James A., Editor-in-Chief, Washington State Guardian Manual, Certified Professional Guardian Board (May, 2003)

* * * * * * * * * * * * *

American College of Trust and Estate Counsel, Engagement Letters: A Guide for Practitioners Conduct (March 1999)

Cassasanto, M. D., Simian, M. and Roman, J, A Model Code of Ethics for Guardians, National Guardianship Association, www.guardianship.org (2003)

Moore, Nancy J., Conflicts of Interest in the Representation of Children, 64 Fordham L. Rev. 1819 (1996)

National Guardianship Association, Standards of Practice (2000)

Treacy Jr., Gerald B., Washington Guardianship Law Summary, Summary of Washington Guardianship Decisions (treatise of LEXIS 2002)

Wingspan – The Second National Guardianship Conference, Recommendations, Stetson Law Review 595-609 (2002)

APPENDIX A-2

400 Standards of Practice:

401. GENERAL A guardian shall exercise care and diligence when making a decision on behalf of an Incapacitated Person. The civil rights and liberties of the Incapacitated Person shall be protected. The independence and self-reliance of the Incapacitated Person shall be maximized to the greatest extent consistent with their protection and safety.

401.5 The guardian shall protect the personal and economic interests of the Incapacitated Person and foster growth, independence, and self-reliance.

401.7 Whenever feasible a guardian shall consult with the Incapacitated Person, and shall treat with respect, the feelings, values, and opinions of the Incapacitated Person. Wherever possible, the guardian shall acknowledge the residual capacity of the Incapacitated Person to participate in or make some decisions.

401.8 When the guardian has limited authority, the guardian shall work cooperatively with the Incapacitated Person or with others who have authority in other areas for the benefit of the Incapacitated Person.

401.9 The guardian shall cooperate with and carefully consider the views and opinions of professionals, relatives, and friends who are knowledgeable about the Incapacitated Person.

401.12 When possible, the guardian will defer to an Incapacitated Person’s autonomous capacity to make decisions.

402 Decision Standards:

All decisions and activities of the guardian shall be made according to the applicable decision standard.

402.1 The primary standard is the Substituted Judgment Standard. This means that the guardian shall make reasonable efforts to ascertain the Incapacitated Person’s historic preferences and shall give significant weight to such preferences. Competent preferences may be inferred from past statements or actions of the Incapacitated Person.

402.2 When the competent preferences of an Incapacitated Person cannot be ascertained, the guardian is responsible for making decisions which are in the best interest of the Incapacitated Person. A determination of the best interest of the Incapacitated Person shall include consideration of the stated preferences of the Incapacitated Person.

403 Ethics:

403.8 The guardian shall protect the Incapacitated Person’s rights and best interests against infringement by third parties.

406 Financial Management:

406.3 The guardian shall manage the estate with the primary goal of providing for the needs of the Incapacitated Person.

406.4 In certain cases, the guardian shall consider the needs of the Incapacitated Person’s Dependents for support or maintenance, provided appropriate authority for such support is obtained in advance. The wishes of the Incapacitated Person as well as past behavior can be considered, bearing in mind both foreseeable financial requirements of the Incapacitated Person and the advantages and disadvantages to the Incapacitated Person of such support or maintenance.\

406.8 When it is likely that the Incapacitated Person’s estate will be exhausted, the guardian shall, as appropriate, make plans and take necessary steps to acquire public benefits on behalf of the Incapacitated Person. When implementing necessary changes in the Incapacitated Person’s lifestyle, the guardian shall seek to minimize the stress of any transition.