“Contracting” for legal services with an attorney when your capacity is questioned?

Imagine if you were sort of “trapped” with some or most of your liberties taken away.  Imagine if a judge decided in the past that you have lost the legally capacity to contract or make many of your own decisions.   You’ve been appointed a guardian and the court has declared that, in the eyes of Michigan law you are a legally incapacitated person! You might want to fight this in court somehow, right?

If you are still aware of things (even if a bit foggy at times) and call an attorney or even walk into an attorney’s office, can you “hire” them to help you fight off the conservatorship?  And can the attorney, ethically, represent you, either by having you sign a contract or in some other way? Or might you be stuck if the attorney thinks, I’d like to help, but you can’t legally hire me, so, good luck?  And if the law around guardianship says those who have a guardian appointed have the  right to fight it in court–without an attorney is that right a bit of a joke?

This sort of tricky situation does crop up at times, and next week on Mackinac Island as part of the Michigan State Bar Elder Law and Disability Rights Fall Conference, I will be presenting to others in the field thoughts about how our probate code (EPIC) and rules of professional conduct and even judicial appointment as counsel, might weave together to address the issue……

The main presentation materials follow in case you have a “nerd-like” interest in the topic:-):

The Intersection Between

an LII’s Right to Challenge a Guardianship

and MRPC

Brad Vauter, Bradley Vauter & Associates, PC, Grand Ledge

2018 Fall Elder Law & Disability Rights Conference and Annual Meeting Mission Point Ÿ Mackinac Island Ÿ Oct. 17-Oct. 19, 2018

Most attorneys who practice elder law have familiarity with the initial guardianship petition/process for a person alleged to be a legally incapacitated individual (lii). (Sometimes the term ‘legally incapacitated person or lip’is used in place of legally incapacitated individual—for this presentation we will be using lii and/or ward.)

 

We often play one of three roles at the outset of such proceedings or actions—we act as attorney for the petitioner, we serve as guardian ad litem, or we serve as the attorney for the person who is the subject of the petition.  Three different jobs, different responsibilities under the law, different “client assignments or clients.”

 

And as attorneys who work often with the elderly and those with disabilities we have likely given thought to the Michigan Rules of Professional Conduct particularly MRPC Rule 1.14“(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority or mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.. . .”

 

 

THE PROBLEM or QUESTIONS: 

 

But what about helping an lii/ward after the court has appointed a guardian?

 

If a guardian has been named for an individual, and that person, that legally incapacitated individual, calls you a year or two after the hearing, or walks into your office and asks for your help in modifying the guardianship in some shape or fashion, can you help them? If so, how?  And if so, can you be paid given the likelihood your possible new client has little or no access, practically or legally, to their funds?

 

How would you come to represent them?  By a retainer or other agreement? By judicial appointment? Can you let the court know Joe or Jane Blow wants you as his or her  attorney? What about the ethical considerations?

 

(The fine print: Not under discussion in this presentation are representation requests for those falling under protective orders/conservatorships, d.d. or m.i. petitions.)

 

ONE ETHICAL CONSIDERATION:

 

One initial concern, but perhaps easily dismissed in this scenario is solicitation.  If they seek you out, there is likely no problem with the MRPC solicitation provisions under 7.3.

 

 

MANY EPIC REFERENCES TO COUNSEL for the LLI/WARD:

 

And we know EPIC is replete with references to guardian ad litem and also counsel for the alleged lii/ward, not only at the initial application/hearing but afterwards. Two quite different jobs.  And essentially one of right per our statutes and case law.

 

For instance look at these parts of EPIC (emphasis supplied):  “. . .Unless the allegedly incapacitated individual has legal counsel of his or her own choice, the court shall appoint a guardian ad litem to represent the person in the proceeding.” MCL 700.5303(3). “If the individual alleged to be incapacitated wishes to contest the petition, to have limits placed on the guardian’s powers or to object to a particular person being appointed guardian and if legal counsel has not been secured, the court shall appoint legal counsel to represent the individual alleged to be incapacitated. If the individual alleged to be incapacitated is indigent, the state shall bear the expenses of legal counsel.”  MCL 700.5305(3). “If the individual alleged to be incapacitated requests legal counsel or the guardian ad litem determines it is in the individual’s best interest to have legal counsel, and if legal counsel has not been secured, the court shall appoint legal counsel. If the individual alleged to be incapacitated is indigent, the state shall bear the expense of legal counsel.”  MCL 700.5303(4).

The assistance of counsel, the opportunity to be present at a hearing, accommodations for those subject to the petition, and opportunities to question witnesses and present their own evidence, to have a jury trial or a closed courtroom are further laid out in EPIC particularly portions of MCL 700.5304 . . . (4) The individual alleged to be incapacitated is entitled to be present at the hearing in person, and to see or hear all evidence bearing upon the individual’s condition. If the individual wishes to be present at the hearing, all practical steps shall be taken to ensure his or her presence, including, if necessary, moving the hearing site. (5) The individual is entitled to be represented by legal counsel, to present evidence, to cross-examine witnesses, including the court-appointed physician or mental health professional and the visitor, and to trial by jury. (6) The issue of incapacity may be determined at a closed hearing without a jury if requested by the individual alleged to be incapacitated or that individual’s legal counsel.

Does the person who calls you, or walks into your office–trying to change the guardian, or end the guardianship–does EPIC have much to say about their right to counsel after the initial hearing? It does. “An individual for whom a guardian is sought or has been appointed under section 5306 has the following rights: (u) to periodic review of the guardianship by the court, including the right to a hearing and the appointment of an attorney if issues  arise upon the review if the guardianship…” MCL 700.5306a (1)(u).

Further we read in MCL 700.5306a (1)(v)(w) and (x), that even after there has been an adjudication of legal incapacity a ward or lii is entitled to:

(v) To, at any time, seek modification or termination of the guardianship by informal letter to the judge, as provided in section 5310.

(w) To a hearing within 28 days of requesting a review, modification, or termination of the guardianship, as provided in section 5310.

(x) To the same rights on a petition for modification or termination of the guardianship including the appointment of a visitor as apply to a petition for appointment of a guardian, as provided in section 5310.

(Section 5310 is about the resignation or removal of a guardian, as you may have suspected.)

 

The stakes involved in trying to terminate a guardianship over an individual, are high.  This is so even though the review request or hearing request can start with a simple note to the court. What makes the stakes so great?  What makes the stakes so great a ward or lii really should have/use counsel?

 

First, because of the way in which guardianships can eat into our liberties and freedom of choice–freedoms and independence many of us tend to take for granted–and second, the opportunities to raise our hand, and demand a hearing or a “do-over” before the court, is limited.

 

The court doesn’t need to set up hearings every week, even though the ward or legally incapacitated person wishes it were so. Indeed, most probate courts will hear such requests after the initial hearing, only about twice a year under MCL 700.5310 (3) “Except as otherwise provided in the order finding incapacity, upon receiving a petition or request under this section, the court shall set a date for a hearing to be held within 28 days after the receipt of the petition or request. An order finding incapacity may specify a minimum period, not exceeding 182 days, during which a petition or request for a finding that a ward is no longer an incapacitated individual, or for an order removing the guardian, modifying the guardianship’s terms, or terminating the guardianship, shall not be filed without special leave of the court.” Essentially in any given year those on whom a guardianship has been adjudicated have, usually, only two bites at the apple if they want change.

 

SOME COURT RULE REFERENCES to ATTORNEY REPRESENTATION for WARDS/LII’s

 

Our Michigan Court Rules also make reference to attorneys for wards/lii and alleged lii’s including, but not limited to MCR 5.117, MCR 121, and 5.408(A)(3) and (B)(1)(2).

 

Especially note this part of MCR 5.408 (emphasis supplied)

(B) Petition for Modification; Appointment of Attorney or Guardian Ad Litem.

(1) Petition by Legally Incapacitated Individual. If a petition for modification or written request for modification comes from the legally incapacitated individual and that individual does not have an attorney, the court shall immediately appoint an attorney.

(2) Petition by Person Other Than Legally Incapacitated Individual. If a petition for modification or written request for modification comes from some other party, the court shall appoint a guardian ad litem. If the guardian ad litem ascertains that the legally incapacitated individual contests the relief requested, the court shall appoint an attorney for the legally incapacitated individual and terminate the appointment of the guardian ad litem.

 

CASE LAW SUPPORTS RIGHT to COUNSEL or IMPORTANCE of COUNSEL

 

Of course, in criminal cases it seems the right to counsel/defense has been nailed down pretty well both by provisions of our US Constitution, as found in the 6th and 14th amendments and as developed over the decades by case law, such as Gideon v. Wainwright, 372 U.S. 335 (1963) and Argersinger v Hamlin 407 U.S. (1972) cases that helped flesh out these rights. Our Michigan Constitution, Article I Section 17 and 20 and Michigan case law also reinforce these rights.

While a guardianship is not criminal in nature, the consequences of a guardianship can still strike deeply into our civil liberties, our privacy, our independence.  Liberty interests are very much at stake. This session isn’t aimed to figuring out where, on the panoply of actions and consequences, a guardianship sits but some observers have noted in some instances, a ward can have less rights than a convicted felon.

Even in civil litigation, the courts have noted that access to counsel may be critical and so while attorneys may not be “of right” in most civil matters, unlike many criminal matters, case law has supported adjournments of cases, extra time for lawyers to get up to speed when coming on a case, etc.  Many courts prefer that the parties be represented by counsel, rather than proceed in pro per, even though they can not typically demand that those before the courts have counsel.

 

CAPACITY TO CONTRACT? CAN AN ATTORNEY BE HIRED IF THERE IS QUESTIONABLE CAPACITY?

 

If we think the legislature has paved the way for a ward/lii or alleged lii to have legal counsel by statute, and the courts have allowed for same, by way of our court rules, what’s the problem? In a word (well, actually, a few words) “contractual capacity.”

 

In almost any review of lawyer client relationships, the connection is deemed one of contract. Some sort of agreement between the client and the attorney is required.  While this can be express or implied under MCL 600.919 we are still assuming a contract is in place. (See: MCL 600.919 (1) The measure of the compensation of members of the bar is left to the express or implied agreement of the parties subject to the regulation of the supreme court. (2) Any agreement for such compensation, or for reimbursement of any expenses, incident to the prosecution or defense of any claim by any party is wholly void if such professional employment was solicited by the member of the bar, or by any other person acting on his behalf or at his request, unless the services of such member of the bar were first requested by such party.)

But most of us suppose that a ward or lii simply cannot contract, or at least contract in the way one might normally contract with an attorney or other professional.

For instance the Restatement (Second) of Contracts §12 provides some examples of those persons who may lack capacity to enter into contracts. A few pertinent parts follow:

(1) No one can be bound by contract who has no legal capacity to incur at least voidable contractual duties. Capacity to contract may be partial and its existence in respect of a particular transaction may depend upon the nature of the transaction or upon other circumstances.

(2) A natural person who manifests assent to a transaction has full legal capacity to incur contractual duties thereby unless he is (a) under guardianship, or (b) an infant, or (c) mentally ill or defective, or (d) intoxicated.

Is this an absolute though? Is every instance in which an lii/ward “contracts” for something or some service, is the contract always void, or merely voidable?

 

A case from the 1930’s, when our statutes surrounding guardianship were different–Acacia Mut Life Ins Co v Jago, 280 Mich 360; 273 NW 599 (1937)–is cited or referenced for the idea that persons under guardianship are “conclusively” presumed unable to contract due to lack of capacity to enter into a contract.

 

But a few years later, in 1940 the Michigan Supreme Court (Wies v Brandt, 294 Mich 240; 293 NW 773 (1940)), cited Acacia, but took a slightly less determinate view—a presumption remained that contracts made by a guardian were invalid, but such a presumption was not “conclusive.”

 

If we assume under Michigan case law that the incapacity of an lii/ward means entering into a contract is a dicey proposition at best, and that there is a good chance any such contracts will be deemed void or voidable, how can an attorney outline a fee agreement or even a course of action with an lii/ward?   Do we make notes and stand willing to prove that our contract with a lii/ward is “o.k.” after all, given Wies? And if so, and we get roped into a client capacity challenge, might we be precluded from actually helping the individual later?

By the way, attorneys who prepare estate plans for clients in Michigan often make their own non-judicial assessments of capacities of our clients or potential clients. Older cases  indicate that making a will requires less capacity than entering into a contract.  See In re Vallender’s Estate310 Mich 359, 17 NW2d 213 (1945). And in regards to standards now found in EPIC for will drafting and drafting a medical power of attorney our legislature has made use of the lower standard of “sound mind” for capacity when executing a will, former MCL 700.2501, or a medical or mental health power of attorney, MCL 700.5506.

When looking at the “sound mind” standard, both caselaw and jury instructions hold that the appointment of a guardian is not conclusive that the individual lacks having “a sound mind.” See In re Cummins’ Estate, 271 Mich 215, 259 NW 894 (1935); see also M Civ JI 170.41. It’s enough to show the individual knew the natural objects of his or her bounty and the extent of his or her estate and that they entered into a plan to dispose of their estate.

These more nuanced, and less demanding, levels of capacity may not instruct us though, unless one tries to make a sort of argument that estate planning is akin to guardianship challenges, an argument that hasn’t seemed prudent or gained traction. (Perhaps if a ward/lii met with us though and said: “Hey, I’d like to set up some dpoa and medical poa arrangements instead of dealing with the guardianship” Might that work?)

Given the legislative focus and directive to respect individuals and their abilities, even post guardianship, as well as the legislative nod to self-reliance and independence on the part of the lii (see MCL 700.5306 and 5306a, and 700.5316 for instance) might folks who actually find your office on their own, and called you for help—might they be able to sign an agreement with you after all? Or should you encourage them to notify the court they want you as their lawyer and leave it at that? Or can you notify the court that Joe blow walked into your office and you are willing to help?

 

RI-243 of October 1995 provides ethical guidance regarding communications by counsel with a judge, and a judge with counsel.  MRPC 3.5 and MCJC 3A(4) come into play, and as you might suspect, most ex-parte communications are forbidden. However, some ex- parte communications can be considered benign if it involves mere scheduling or administrative matters not tackling substance and substantive issues involved with the matter before the court. What then, of your own notice to the court, by way of simple letter, with perhaps a proposed fee schedule or even draft engagement letter attached?

 

I DON’T NEED NO STINKING CONTRACT. . .? Or how to get your wrist slapped, or not?

 

Without wading into the thickets of judicial interpretation of legislation, a task we need not do anyway if the legislation is pretty clear, can we suggest a non-contractual course forward?  Is Joe Blow going to get your help in Michigan without a contract (quite possibly valid or invalid, void or voidable) between him and you?

 

I think so, because the legislature is presumed to have known the law when they pass legislation. So they knew that normally clients are represented by attorneys by way of a contract, express or implied.  They also knew that once a guardianship is imposed, a wide range of rights might be taken from the lii or ward, even though they also, under EPIC, set out as a preference, “limited” guardianships.  It should not have gone unnoticed by the legislators that almost always there will be a presumption that those who have a guardian can seldom enter into a valid contract on their own. Finally, as cited in the legislation and court rules noted earlier, a judge “shall” appoint counsel in a contested matter, initially, and if change is sought later.

 

I suggest then that when Joe Blow seeks our help, to contest a guardianship in any way or fashion, he write the note to the court saying he doesn’t want the guardian, etc. etc. and that he also say, I want so and so to be my lawyer.

 

Or, if you don’t think it risks a wrist slap for communications with a court (again, see above) a short note to that effect that you send to the probate register should put in place your appointment as counsel, particularly if you lay out in your note an approximate cost, method of billing, etc.

 

But this is all wild speculation on my part—what would you do?

 

BY THE WAY, IF IT HAPPENS TO US?

 

What happens if someone gets a guardianship over us and we are still practicing? (this is strictly for the bonus round)

What about us by the way?  Transfer to Inactive Status

If an attorney has been judicially declared incompetent or involuntarily committed on the grounds of incompetency or disability, the Attorney Discipline Board must enter an order immediately transferring the attorney to inactive status for an indefinite period. If the Grievance Administrator alleges in a complaint that an attorney is incapacitated because of mental or physical affirmity or disability or because of addiction to drugs or intoxicants, a hearing panel determines whether the attorney is incapacitated and, if it so determines, enters an order transferring the attorney to inactive status for an indefinite period.

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