Fleming & Curti, P.L.C. - Daughter Has Priority As Guardian Despite Conflicts

FEBRUARY 21, 2000 VOLUME 7, NUMBER 34

Daughter Has Priority As Guardian Despite Conflicts

Esther L.K., an elderly Wisconsin woman (Wisconsin courts help preserve anonymity by using initials rather than last names), needed a guardian. Her family members assumed they would be appointed, but the court instead appointed a private fiduciary organization, Legal Guardianship Services, Inc. Esther’s daughter Patricia A.M. (with support from her brothers and sisters) appealed the decision.

Wisconsin law directs the court to "take into consideration the opinions of the alleged incompetent and of the members of the family" in deciding who should be appointed as guardian. "However," according to Wisconsin law, "the best interests of the proposed incompetent shall control in making the determination when the opinions of the family are in conflict with the clearly appropriate decision."

Before appointing Legal Guardianship Services as Esther’s guardian, the trial judge had decided that her best interests required appointment of a non-family member. LGS had already been appointed conservator of Esther’s estate, apparently without objection from Patricia or the family.

The court’s decision was partly based on a history of conflicts between Esther’s daughter and the nursing home where she had been placed, and the court expressed concern that Patricia might seek to move her mother to a new nursing home out of the area. To make sure she stayed in the community where she grew up, ruled the judge, it was necessary to appoint an independent guardian.

All of Esther’s children agreed that Patricia should serve as guardian. Patricia herself noted that there was no proposal to move her mother from the nursing home, and that the court could limit her authority if that seemed necessary to ensure she stayed in the community.

The Wisconsin Court of Appeals agreed with Patricia and the family, holding that the mere threat of a conflict between the guardian and the nursing home was not sufficient to prevent appointment of Esther’s daughter. The decision was returned to the lower court, with instructions to consider whether Patricia’s actions had ever actually been contrary to Esther’s best interests; otherwise, the family’s opinion should be given strong consideration. Guardianship of Esther L.K., February 17, 2000.

In a law similar to the Wisconsin statute, Arizona instructs the court to "give preference for the appointment of a family member unless this is contrary to the expressed wishes of the incapacitated person or is not in his best interest as determined by the court." In practice, this usually means family members will be appointed unless there is specific evidence of previous wrongdoing or inability to act.

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