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Posted by tims on March 3, 2009 04:50 PM | Permalink
I just wanted to send a note on the proposed legislation that was a huge surprise to me and other members of the Estate Planning Section of the Bar, and which many of the Section Members believe is flawed. Interestingly, although the ad hoc committee has been working on proposed legislation for quite some time, they have not sought any input from the Estate Planning Section of the Utah Bar until a few weeks ago when a presentation was made (at the request of the Section leadership, not because they were seeking input). The large majority of experienced estate planning attorneys in the room took issue with much of the proposed legislation. From my perspective, the proposed legislation will increase substantially the time and cost of obtaining the appointment of guardians and conservators, and has some serious language flaws in the standards that will be used for determining whether a person is incapacitated and needs a guardian or conservator appointed, and how much help is needed (sorry for the long sentence). It will require customization of each judicial order to the specific circumstance and then frequent returns to Court for “tune-ups” based on changing circumstances, particularly for the elderly. When this concern was expressed at a Section meeting, the response was that attorneys and courts will simply have to craft orders that somehow take into account the anticipated changes to avoid going back to Court; which of course is why you were there in the first place, to get someone appointed with sufficient authority to take care of things as an elderly persons or others health and mental status declines.
This proposed legislation is really flawed and seems to be trying to address a problem that may exist in other systems, but which I have not observed in my practice. The general comments I gleaned from other experienced practitioners at the meeting were similar. As I viewed the limited information from the report, it seems that it is a reaction to academic studies from areas of large aging populations where guardianships were seen in much greater volume and where you could predict that family wasn’t particularly involved. In other words, bad cases based on different circumstances prompting us to try to solve a problem that doesn’t exist here, or at least hasn’t been observed in our common experiences. I will say that I’ve seen abuses and I’ve seen overzealous family members but the systems are now in place to manage those situations, and could be tweaked if necessary.
I also noted as I reviewed the membership of the ad hoc committee that the committee only had one practicing attorney (Kent Alderman who I have great respect for).
I may be unaware of many circumstances which have prompted members of the Committee to be promoting this legislation. However, I believe the proposed solution will create more abuses because our less affluent clients will not be able to enter the system. As I’m sure you are aware, cost in obtaining these services is a big issue. When the Courts began requiring appointment of separate counsel for the person to be protected many years ago, I saw people looking for alternatives. This proposed legislation will easily double and triple the cost to obtain the appointment of a guardian and conservator, with very uncertain results. While it is aimed at being more protective of the person to be protected, if the results are uncertain and the cost is prohibitive, I know many of the clients I have helped in the past will use other means to avoid this new proposed system. It also creates a representation issue for attorneys. I have personally assisted in having guardians and conservators appointed for the benefit of my clients in the past. Under the legal representation standards set forth in this proposed legislation, zealous representation is required –against the appointment. As an attorney you would no longer be able to factor in the “best interests” of your client.
I found it Interesting that the presenter at our meeting was unwilling to tell us who the bill sponsors were going to be at the meeting. I wonder why?
I cannot support these proposed changes and will work to oppose this proposal
December 28, 2009 05:53 PM
This entire matter seems to be a hughe overkill. I agree that the accounting for Conservators needs to be tightened, but the rest of the system works OK. It "ain't broke" so why try to fix it. This is classic knee-jerk.
Walter C Bornemeier
January 11, 2010 12:44 PM