The Challenging Role Of Court-Appointed Counsel For Conservatees

Family members often initiate conservatorships to protect loved ones who have become unable to manage their own personal, medical, and financial affairs. These concerned family members petition for court intervention out of good motives: to protect an aging parent or other loved one who may be suffering from dementia or other debilitating conditions. Though conservatorship may be the best legal option, the process can also be difficult, time consuming and expensive. Moreover, it can be confusing when family members don’t understand the role of attorneys in the process.

Most petitioners don’t expect that the person they are seeking to protect may become their greatest adversary in the conservatorship process. Senior citizens who suffer from dementia may become extremely resistant to being placed under supervision. They often think that the petitioner, often one of their children, is trying to steal their money and lock them away in a facility. Sometimes they are angry that they might lose the right to control their own money or make their own decisions.

Many Petitioners are also surprised to learn that after they file a petition for conservatorship, the Probate Court will often appoint an attorney to represent the proposed conservatee. They are then even more shocked when that attorney files objections on behalf of the proposed conservatee, then demands that the court conduct a trial (sometimes before a jury) to determine whether a conservatorship is necessary. Isn’t it obvious, the Petitioner may wonder, that their parent has dementia and needs a conservatorship? Why would this attorney be fighting to prevent them from protecting and taking care of their loved one? The answer lies in an attorney’s obligation to his or her client.

California statutory authority is unclear about whether an attorney for a proposed conservatee should advocate for the expressed wishes of the client or the “best interests” of the client. The Probate Code doesn’t answer the question. Probate Code §1470(a) provides for a discretionary appointment of an attorney, and states that the attorney’s role is to be “helpful to the resolution of the matter” or “protect the [conservatee’s] interests.” Being “helpful to the resolution of the matter” might suggest that the attorneys should take on a “best interests” or conciliatory role in the proceedings. On the other hand, the mandate “to protect the [conservatee’s] interests” can be read to suggest that the attorney should act as a zealous advocate for the wishes of his or her client.

Probate Code §1471 provides for mandatory attorney appointments in some circumstances, including petitions that request dementia powers. This provision also commands that the attorney is to “represent the interest of [the conservatee].” Neither of these Probate Code provisions suggest how the conservatee’s interests are to be determined, but this language is consistent with the idea of the attorney being a “zealous advocate.”

Probate Code §§1823 and 1828 discuss the conservatee’s right to oppose the conservatorship and the right of the conservatee to have counsel to assist in fighting the petition for conservatorship. Probate Code §2356.5 requires the appointment of an attorney in cases where dementia powers are sought. Both of these sections seem to contemplate that the attorney should take the role of being a zealous advocate to assist the proposed conservatee in opposing the imposition of the conservatorship and the imposition of dementia powers. The legislature recognized that the imposition of a conservatorship and the granting of dementia powers both involve a significant deprivation of civil rights.

On the other hand, the California Rules of Professional Conduct strongly support the view that a conservatee’s attorney should be a zealous advocate for his or her client’s wishes. The California State Bar issued an ethics opinion (1989-112) holding that an attorney may not institute a conservatorship proceeding contrary to his or her client’s wishes, even if the attorney fees that the conservatorship is necessary to protect the client or that it is the client’s best interests. Several ethics opinions by local bar associations have agreed with this analysis and have expressly stated that clients have the right to direct their own cases. Confidentiality and zealous advocacy preclude an attorney from seeking any outcome contrary to the client’s wishes. (San Diego Bar Association Ethics Opinion 1978-1, Los Angeles Bar Association Ethics Opinion 1988-450, Orange County Bar Association Ethics Opinion 95-002).

What should an attorney do when his or her client, a proposed conservatee, cannot communicate or has questionable capacity? In these circumstances, at a minimum the conservatee’s attorney should attempt to discover the client’s wishes that may have been articulated in estate planning documents or elsewhere prior to the client becoming incapacitated. The attorney should vigorously investigate the propriety of the proposed conservator, investigate whether less restrictive alternatives to conservatorship can be considered, and advocate to limit any conservator powers that are not appropriate. The attorney should also tell the court the conservatee’s wishes, to the extent the conservatee can articulate his or her wishes.

For clients who have capacity, the prevailing view — and the correct one — is that the attorney should zealously advocate for the client’s wishes. To the extent that the probate code suggests that the attorney should be “helpful to the resolution of the matter,” or should advocate for the client’s “best interest,” the Rules of Professional Conduct mandate that the attorney should advocate zealously for the client’s wishes, even if the conservatee is making potentially unsound or unsafe decisions.

Does this mean that the role of the conservatee’s attorney may be to frustrate the goal of conservatorships? Aren’t there good public policy reasons to make sure that potential conservatees are protected from fraud and from scammers? Don’t we want to make sure that our vulnerable citizens with dementia and incapacity are taken care of and protected?

The answer to all of these questions is yes. But the conservatorship process takes place in the context of our adversarial system, and must take the liberty, freedom, and privacy rights of the conservatee into account. The conservatee’s lawyer is the voice of those interests, and the protector of conservatees against unwarranted or excessive control. Often that lawyer is the only such voice.

Mark Flory

Mark Flory

Mark Flory is Special Counsel with Brown White & Osborn LLP. His practice focuses in the areas of probate and trust administration and litigation, estate planning, conservatorships, and protecting elders and individuals with disabilities.
Mark Flory