Fleming & Curti, P.L.C. - Guardian Allowed to Restrict Visitors, Telephone and Mail

NOVEMBER 23, 2009 VOLUME 16, NUMBER 62

Guardian Allowed to Restrict Visitors, Telephone and Mail

Being appointed as guardian for another person can be a daunting challenge. The responsibility is enormous, and most guardians get little or no training other than the “on-the-job” type. The stakes — a human life — are enormous.

What is the proper goal for a guardian? Is it to ensure the safety of the ward? To interfere in the life of the ward as little as possible? To protect the ward’s autonomy and give him or her wide latitude? To carry out the ward’s wishes as expressed before his or her incapacity? In a word, yes — even though all of those goals may conflict with one another. No easy task.

Although the courts are supposed to resolve the tension between these competing goals, in the real (legal) world that often does not happen. Instead, the legal dispute can sometimes devolve into a determination of whether the guardian’s decision is so demonstrably wrong, or so clearly motivated by the guardian’s own hopes and wishes, that the guardian should be removed altogether. Courts are not often good at training and guiding guardians.

Consider the recent Missouri Court of Appeals case of In re Estate of Posey v. Bergin (November 3, 2009), as it brings the conflict into clear relief. The ward in that case had been found to be incapacitated in 2003, based on his serious and long-term alcohol abuse. His daughter had been appointed as his guardian.

As guardian, the daughter decided that her father’s old drinking buddy was not a good influence. She also worried that his sister’s calls agitated him. She had placed her father in a residential setting and restricted his access to alcohol. She also ordered that no one could visit, or even telephone, without her approval, and she monitored his mail.

Her father objected that he should not be so restricted. He maintained that he was no longer incapacitated (he no longer had access to alcohol). He argued that he didn’t need a guardian at all, but that if he did someone else should be appointed.

The probate court disagreed with him, and left his daughter in place as his guardian. The state Court of Appeals upheld that decision. But neither decision was about whether the daughter was a good guardian, or whether she was handling her father’s placement, care and visiting rights appropriately. Instead, the case hinged on whether her behavior was so manifestly wrong that she should be removed as guardian. Both courts ruled that she should not.

In fact, the father had tried to remove his daughter as guardian in an earlier proceeding, as well. When the court denied his 2004 petition, his daughter apparently interpreted that to mean that all of her decisions had been approved by the judicial system.

It is easy for us, at this distance (geographic and emotional), to criticize the guardian's decisions and the court's framing of the legal question. Perhaps we could be more constructive by suggesting a few ideas, for the guardian in this case and for guardians generally:

The ward's wishes, even though not necessarily in his own best interests, should be considered. That does not mean that he must be put in charge of his own decisions, but that his personal preferences should be part of the mix. His desire to maintain contact with his sister and with his long-time friends should be recognized, and efforts made to make the contacts constructive.
A child acting as guardian for his or her own parents is almost always torn by competing emotions. It is difficult to reverse the usual roles, and for a child to effectively become parent to his or her own parents. That reality should be confronted, and care taken not to let the role-reversal get in the way. Even a well-adusted guardian might benefit from counseling to look closely at the effects of the role reversal.
If it is truly necessary to restrict visits and access, it should be a restriction rather than a prohibition. Conversations with the other individuals might be one way to make sure they understand the importance of positive contacts and the need to avoid undermining the ward's condition and/or recovery. If the guardian finds that he or she is unable to have a reasonable conversation with the other individual's in the ward's life, the response should be to look for a suitable intermediary rather than to eliminate or unduly restrict the contact.
Safety is important, as is recovery. So is the ward's happiness and peace of mind. Striking a balance is challenging, but essential.
Once a proper balance is found, it will probably require constant adjustment.

Should the Missouri courts have terminated the guardianship, or removed the guardian? Probably not -- and in any case the judges at both levels decided that was not the appropriate decision. That does not necessarily mean that the guardian was doing the best job possible, and it would be a mistake to read the Missouri case as supporting the wisdom of restricting a ward's visitors and outside contacts. The real challenge for the guardian in that case will be to avoid reading the decision as endorsement of all that has transpired, and instead see it as validation of the authority -- but not the necessity -- of the guardian's actions. The challenge for guardians everywhere is to balance the competing interests, desires, histories and circumstances in a most difficult job, and to be willing to adapt to new information and changing situations with humanity, grace and flexibility.