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March 20, 1997

The 79th meeting of the CBA Forum Committee on Legal Problems of the Elderly was called to order at 8:46 a.m. A list of those persons attending is attached to these minutes. There was an announcement that John Bush, one of our long-time members, had died last month.

The minutes were approved.

Our May meeting will be the annual business meeting and will deal with the elections. There will be no topical presentation in May.

We had a long program scheduled, there were bylaws to approve, so the meeting started earlier than usual. Our treasurer, gave the budget report. Two hundred members times the $10 fee equals $2,000 raised through membership dues. We currently have $1,600 left. A motion was made and carried to keep the dues at $10.

The 1997-1998 budget will include three items in particular: $2,000 for the Denver University Senior Law Day, if it is not covered by donations from private parties or from other charitable donors; the subcommittee Judicial Liaison which may publish a procedural manual for use by all courts in Colorado, as this cost is not otherwise covered; and $200 for an alternative HCBS project to amend a statute, seeking to extend spousal protection to home-bound community spouses, as well as those in institutions. ***(call Liz Paul to verify language)

Yearly, we must spend all of our dues. We can carry-over a balance, and we can expect to carry-over approximately $1300. We are asking for $5,400 from the CBA for the three projects stated above. Our fiscal year runs from July to July.

Carl Glatstein handled the nominations for the 1997-1998 co-chair, officers, and Council. Richard Vincent was nominated to be the new Co-Chair. Liz Paul was nominated to continue as Treasurer. Dan Rottman and Shirley Mitchell and possible Julie McVey were nominated, and two of the three may serve as co-secretaries. We also need three members of the Council, we are replacing one, and Shirley Mitchell will stay on for another three-year term. Nominated for the one available Council position were Bonnie Roberts, Chuck Connell, Bette Heller and Hartley Goldstone. ***(check all these people with Carl Glatstein)

These are the candidates. Ballots will be mailed with the notice of the April meeting. (At the April meeting, Herb Tucker will talk about probate litigation.)

Richard Vincent said that he had NAELA materials that can be distributed to clients and others.

Baird Brown was absent from our meeting but had suggested to Kathleen Negri that we endorse a list serve on the Internet, and those with information should contact Eugene Zuspann. ***(contact Kathleen Negri and find out which Eugene Zuspann, older or younger)

Paul Mitchell gets lots of E-mail regarding NAELA membership. You can send in a question and get an answer, and responses are both public and private. (Paul Mitchell is a former chair of the computer section of the CBA.) ***(Verify that's the correct name and title.)

Bette Heller said the Council will propose a survey to its members during the forth coming year, to find whether committees are being started and running, and finding whether there is no time for both hot topic discussions and also CLE presentations. A suggestion was made that one day could be our own Super Thursday, and we will discuss it later.

The program began, "Overview of Guardian ad Litem Issues."

The first speaker was Marge Odiorne, State Court Administrator, Colorado Judicial Department. She brought documents, the first of which is entitled "Court Appointed Council (sic) Paperwork Flow."

The GAL works for the court and through the court, and probate proceedings, delinquency proceedings, mental health cases, etc. Court appointed persons apply for pay using form JDF207. These materials show when to turn it in. At present, this varies across the state. A new rule in 1997 requires that each bill must be turned in every sixth month or at the end of the case. The materials also include the most common errors, something we should all avoid.

Filings differ by counties, for example, El Paso and Denver Juvenile Court file Guardians ad Litem by the attorney name, not by the underlying case. Items that are reimbursed and items that are not reimbursed were set forth in the handout, on p. 2 of the April 1, 1997, statement, as well as on the pink copy on the back of the yellow JDF207 form. Attach a copy of the items requested here, and also attach a copy of any discovery when you are seeking to be paid.

Shirley Mitchell stated that the State required IRS form W-9 several times from her.

Next, Linda Donnelly, Disciplinary Counsel, Supreme Court of Colorado, spoke on grievances that Guardians ad Litem may face. (Her handouts will come next month.) There are few grievances filed against Guardians ad Litem. The last survey was for two years, 1993 and 1995. The basis for these grievances is a common one, either a wrong recommendation or insufficient research and investigation. Complaints come from parents, relatives, and recently from grandparents.

The challenges that catch the Disciplinary Counsel's attention are those claiming incompetence and dishonesty, that the GAL did not meet with enough people or investigate sufficiently, or did something that was outright dishonest. ***(Clear up the adjectives and adverbs) There is only one GAL Colorado case, In re Marriage of Hartley, 886 P.2d 665 (Colo. 1995), a case in which the custody of a minor child was at issue in a marriage dissolution proceeding. The minor child was represented by the Guardian ad Litem. The court stated that the Guardian ad Litem is to represent the interest of the child, but is not simply to parrot the child's expressed wishes.

Minnesota has paved the way for Guardians ad Litem for several years, using Guardians ad Litem as both assists to the court and as advocates for the individual. The Hartley case cites a Maryland case and RPC 1.14, that representing a client with a disability includes representing a minor.

There is no clear decisions on the confidentiality of the files and records of a Guardian ad Litem. If a Guardian ad Litem is acting as an advocate, the response to someone seeking a file is assertion of the "attorney-client" privilege. If the GAL is acting as an aide to the court, then the defense to inquiry is the "work product" doctrine.

Three Rules of Professional Conduct (RPC) are involved, 1.1, 1.3, and 1.14.

RPC 1.1 deals with competence -- were you prepared, did you know the law, did you review the statutes, do the research, seek a mentor, etc.?

RPC 1.3 requires diligence -- formerly, this was listed under neglect, give the matter attention, even though everyone in the case wants you to do one thing more -- review the opinions and the facts with the child, the school, the relatives, and everyone else who reasonably could be involved. Only one case deals tangentially with a Guardian at Litem, where an attorney abandoned his practice entirely, and one of his cases included his appointment as Guardian ad Litem. Compensation is not related to the size of the case, pro bono, or small, or medium, or large fees. ***(change this)

RPC 1.14 deals with clients with a disability. As far as you can, go to treat the person as a normal client would be treated, get the impact, look at the rule, and especially the commentary. This rule has a change in emphasis: the prior rule dealt with the attorney-client; the new rules deals with the client-attorney. The most important thing is communication, sending copies, and keeping the client informed.

Linda Donnelly then reviewed several cases, giving no names or citations. Most of the cases are in the 1990's. A Wisconsin case dealt with a Guardian ad Litem who received and kept a duplicate check. A New Hampshire case dealt with a conflict of interest where the GAL represented both the father in a criminal case and the children in the father's divorce case. In an Illinois case the Guardian ad Litem appeared once and got a call from the Judge needing a loan, the Judge later defaulted, and the Judge subsequently appointed the attorney on other cases. A Wisconsin case dealt with monthly personal injury payments for the child received by the Guardian ad Litem, but much of the $14,000 never reached the child. A Washington case involved a GAL for a criminal client who was sent to the state hospital for a mental exam, later released to an interim facility, the living conditions there were terrible, but the attorney did nothing to relieve them. A New York case in the last 60's involved an attorney who exaggerated claims for 11 children, but he had not been appointed Guardian ad Litem first! In another New York case an attorney paid referral fees for cases sent to him, parents were signing on blank forms to appoint the attorney as Guardian ad Litem and then to litigate on the children's behalf. Next, Magistrate Sandra Franklin, Denver Probate Court, and Magistrate David Griffith, El Paso County Probate Court, continued the program.

The Colorado Supreme Court in Judicial Directive 9602, issued February 1, 1996, did not adopt CBA standards, held that the District Court cannot set up local rules, but the Denver Probate Court did adopt local rules and guidelines for Guardians ad Litem. These set up minimum requirements for Guardian ad Litem appointments to represent children in probate, but not in divorce or probate cases. ***(clarify this) There are GAL requirements to obtain CLE, but we need to call the court and ask Alan Ogden if he meant 10 hours every 3 years, or 10 hours every year. ***(correct spelling of name and answer to question)

The two main reasons to appoint a Guardian ad Litem are to protect the child involved, and to protect the finality of judgment -- reduce later challenges to the judgment by disgruntled parties.

Sandra Franklin said the most frequently asked question is, when do you appoint a Guardian ad Litem or court visitor? In the report, the visitor recommends the attorney or the Guardian ad Litem to be appointed. Appoint the attorney first, see if he/she is really needed, and if not, cancel him/her out. If the visitor asks for an attorney, you will get one.

If you need a Guardian ad Litem to protect a child's interest, it will be because more than the petitioner's care is required, the visitor sees something that triggers the need, and often there is family in-fighting evident.

The Guardian ad Litem makes an independent investigation and reports activities and conclusions to the court, CRS 15-14-314(2). Many fabrications occur in court, it is hard for the Magistrate or Judge to reach a just result, so the courts rely on the Guardian ad Litem.

It is tough and there is all the confusion between the roles of the attorney as GAL and as advocate.

Review the GAL appointment order. It may be general, or it may be limited to a single transaction, CRS 15-14-314(1). If your efforts go beyond the appointment order, you will not be paid for these extra efforts. But do take steps and be diligent, to represent and protect the individual. You will often face problems of lack of good cooperation, from banks, social security, and others. One solution is to send a letter, threatening to go to court seeking relief or to find them in contempt. This often works. However, you may need to go to court seeking relief. Regarding confidentiality of GAL files and documents, compare Linda Donnelly's comments with Sandra Franklin's FOURTH guideline regarding open inspection. Sandra Franklin favors openness. She does not feel secrecy is needed by a GAL.

David Griffith cited a U.S. District Court case in 1990 or 1991 before Judge Babcock, Short v. Oosterheis, --- F. Sup. --- (D.Colo. 1990--) ***(get citation), in which the Judge held that a Guardian ad Litem has absolute quasi-judicial immunity as to liability. He is unsure whether a GAL is protected if they go ultra vires into areas outside those to which they were appointed. "Liability" as to Grievances against the GAL, these are increasing in divorce and juvenile cases but decreasing in probate cases.

When you are in doubt, ask the court and petition for instructions, this gives you both guidance and a defense.

Sandra Franklin felt that court visitors also have quasi-judicial immunity. ***(Did you ever ask Fred Vondy whether there is a problem of venue? For purposes of a GAL or for ancillary jurisdiction, can you open a probate case in one county and deal with land in another county?)

Both Magistrates keep notes, and they feel comfortable doing so. They keep notes regarding pro se and Ex parte cases and discussions.

Ex parte talks with the court are usually not improper. You must distinguish between procedural questions and substantive issues. A procedural question can be asked and resolved with the court. But don't ask the court how the case should turn out, because that is a substantive issue.

Ex parte communications were discussed again. The "classic case" occurs when you are representing a six year old child, you're the GAL in a custody dispute, and you assure the child that "anything you tell me will never be known to anyone else." Can you do it? Can you promise it? The answer is no. If the child goes back into the family, will the child be punished due to his or her comments? You want to give assurances, but you really shouldn't.

Sandra Franklin noted the unique GAL position, the only time when an attorney can give a recommendation to the court. This goes against secrecy, because the GAL should not be allowed to give an opinion without opening up the basis for that opinion.

David Griffith noted that a GAL's duty to the elderly and a child differ, because the elder person may not be going back into a family situation and suffer adverse consequences as a result of disclosures.

David Griffith traced the history of the Guardian ad Litem. In the 1970's a "discrete person" looked into the situation looked into the situation and advised the court. The key was discretion, it was done discretely, not openly, in court. There is a change in the 1990's. It is done openly, in court, everyone is using the same rules, and almost everything is put on the record. However, it can be qualified. A Guardian ad Litem is also a fiduciary to the client, required to promote the client's best interests and not to harm his or her best interests. Therefore, this fiduciary role may prohibit putting into the record information that is very sensitive. In a close situation, seek a protective order, using in camera motions, arguments in chambers, swearing everyone to secrecy, and sealing the record, to the extent necessary. The role of the GAL at a hearing is to state facts and make a recommendation. Sandra Franklin recommends that the GAL make an opening summary, ask questions, give a conclusion, and she recognizes how important a GAL functions as a mediator. David Griffith urges all GALs to do trial preparation and conduct themselves well at trial. He agrees that the mediator role is very important. Usually, where the GAL mediates, the cases come to settlement.

Usually, the GAL is an attorney. Sometime, a team is used, but not often.

Magistrate Griffith's materials begin with a March 5, 1996, letter to him from the Law Office of Lynn M. Vahatta. Magistrate Sandra Franklin's materials begin with a probate court document, Appointment Guidelines for Guardians ad Litem in the Denver Probate Court. The Magistrates gave guidelines for GAL reports. Be complete, be concise, have detail, begin with a summary, and conclude with a recommendation. This detail is your best protection against a grievance later. File your materials well in advance of trial, so all sides have an opportunity to review them.

David Griffith says the "most important" matter in these proceedings is the nature and degree of the incapacity, and it is very important to address these. For all the facts and a good recommendation, you need to talk to several people, the family, others who interact, etc.

At the conclusion of the case, move for termination of your role as a Guardian ad Litem, so you don't find yourself being drawn back into the court several months later.

The program terminated and our meeting ended at 11:03 a.m.

* * * * * * * *

- Per V.A. 3/19/97 brief in the Jansen case, the Veteran's Administration is now known as Secretary of the U.S. Department of Veteran's Affairs. Colo. Ct. App. in re the Estate of Matthew C. Jansen, Case No. 96 CAR 2223.

- Many people who turn 65 do not think of themselves as "old." By 2020, the number of people in the Denver area who are over 60 years old is expected to grow by nearly 140 percent. In . . . the number of people over 60 will leap by 634 percent by 2020, according to a report released Wednesday, March 19, 1997, by the Denver Regional Council of Governments. Denver Post, Thursday, March 20, 1997, p. 1B.

- Colorado Access, the State's largest Medicaid managed-care plan, recently marked its first anniversary. Fourteen months ago this non-profit HMO was launched to offer health-care services to Medicaid recipients in 12 counties along the front range. It now serves almost 40,000 members and represents more than one-half of all Medicaid managed-care in Colorado. The Northern Colorado Business Report, March, 1997. (Thanks, Charles Connell.)

"One friend in a lifetime is much; two are many; three are hardly possible." Henry Brooks Adams, American Historian and Author (1838 - 1918), Rocky Mtn. News, Friday, 3/21/97, p. 43D.

Telemarketing Schemes against the Elderly -- At a winter meeting of the National Association of Attorneys General, there was one theme, "Educating Elder Consumers About the Dangers of Telemarketing Fraud: Don't Fall for a Telephone Line." Many states have a Consumer Protection Division that can use the force of law to recover money gained through telemarketing schemes. People taken advantage of by telemarketers should contact their state attorney general to learn where to go for recourse. Tom Udall, Attorney General, State of New Mexico, Dear Abby Column, Rocky Mtn. News, Friday, 3/21/97, p. 2D.

ELDER LAW COMMITTEE ATTENDANCE SHEET
March 20, 1997

Name

Sally Anderson

John E. Archibold

Tamara Barkdoll

John A. Berman

M. Dee Biesterfeld

Steve Brunette

Charles J. Connell

Dirk Costin

Spencer J. Crona

Barbara Dalvano

Marilyn David

Claire E. Dineen

Janene B. Duthie

Elena J. Eisenberg

Carl Glatstein

Jim Golanty

Bette Heller

Carol Jencks

David K. Johns

John E. Johns

Gene Keith

Bob Kirby

Tony Link

John Mason

Julia McVey

Jan Meyers

Paul Mitchell

Shirlee Mitchell

Jan E. Montgomery

Beverly Jo Montoya

John C. Mulvihill

Joyce H. Nakamura

Kathleen A. Negri

Liz Paul

Carol A. Payne

Patrick M. Plank

Mary Catherine Rabbitt

Martha L. Ridgway

Barbara (Bonnie) Roberts

Dan Rottman

Flora R. Russel

Frank P. Slaninger

Linda Smoke

Wayne Stewart

Melissa Sugar

Jennifer R. Thenhaus

Jeanne Thompson

Elizabeth Tulloch

Cliff Venerable

Richard Vincent

Steve Warden

Ed Widmann