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Readers respond to legislation awarding attorney fees to petitioners
in guardianship actions
To protect vulnerable people, SB 158 gives courts discretion to
award fees when appropriate.
The November 1999 Wisconsin Lawyer
contained an
article by Sen. Alberta Darling concerning SB 158
dealing with attorney fees in guardianship actions. First, I applaud
Sen. Darling for sponsoring this legislation which would benefit those
who often are unrepresented in legislative matters, the incompetent
elderly and disabled individuals.
Second, I support SB 158.
I am the immediate past chair of the State Bar Elder Law Section. I
write, however, only in my capacity as a lawyer whose practice focuses
in the area of elder law, which includes guardianship actions.
Both the State Bar Elder Law Section Board of Directors and the
Milwaukee Bar Association Board of Directors support SB 158.
I support this important legislation because it will help individuals
who are the most vulnerable in our society. Incompetent individuals are
protected by means of guardianship actions. The purpose of a
guardianship action is to provide court oversight in the affairs, both
personal and financial, of individuals who can no longer manage their
own affairs due to disabilities, infirmities of aging, and other causes
of incompetence. When a petitioner brings an action for guardianship,
the very nature of that petition is to protect the alleged ward and his
or her finances. When a guardianship is ordered, the court routinely
will order that the guardian of an estate be bonded, provide the court
with an inventory of all assets, and provide an accounting to the penny
of the ward's assets each year. Again, the purpose of this is to protect
the incompetent individual.
The language of SB 158
will permit individuals who petition for guardianship in Wisconsin to
have the attorney fees for bringing such an action paid out of the
estate of the incompetent individual in some circumstances. The Elder
Law Section requested certain changes to this legislation that would
allow courts greater discretion to make sure that attorney fees are not
ordered in inappropriate cases. Those changes were made and the
legislation as modified will give courts discretion to order fees where
appropriate or deny fees where appropriate. SB 158
would reinstate the law as it existed for many years prior to the case
called In re the Guardianship
and Protective Placement of Evelyn O., 214 Wis. 2d 433 (Ct.
App. 1997). Prior to the Evelyn O. case, courts routinely
ordered that the fees for the petitioner's attorney be paid out of the
ward's estate. I believe that the Evelyn O. case is an
aberration given the conflicts of interest that may have existed in that
case. Under SB 158,
the court would have discretion to refuse to order fees in a case such
as Evelyn O., or in cases where the fees are excessive.
If SB
158 is not successful, however, we will continue to see individuals
in our office who decide not to proceed with guardianship actions for a
family member or friend because they cannot afford to pay a lawyer from
their own assets to assist them in the action. Guardianship actions are
complicated and cannot be easily done pro se. Although the county is
supposed to handle such guardianship actions for individuals who cannot
afford them, this does not occur in Milwaukee County given budget
restrictions.
I strongly support SB 158
as drafted and urge other members of the State Bar to support it.
Margaret W. Hickey
Milwaukee
SB 158 aids and improves the administration of justice, helps
incompetent people.
The Milwaukee Bar Association (MBA) supports SB 158
based on the bar's interest in legislation that aids and improves the
administration of justice. SB 158
serves that end for some of the most vulnerable persons in our county:
incompetent adults, not afforded the protections and care giving that
guardians provide.
Milwaukee County agencies concerned with guardianships/protective
placements including the Department on Aging, Adult Services and Mental
Health Division, report that new guardianship/protective placement
proceedings are not being commenced for hundreds of Milwaukee County
adults identified (by health care personnel, family members, and
neighbors) as unable to make decisions for themselves and who are
without guardians for medical and financial decision making. Adult
persons needing guardians live in private residences, adult foster care
homes, group homes, community-based residential facilities, nursing
homes, and in both mental health and general hospitals. They are in need
of guardians due to infirmities of aging, developmental disabilities
(including incompetent minors attaining age 18 and therefore legally
responsible for themselves for the first time), chronic mental illness,
and other mental incapacities.
Guardianship, sadly, is needed. The procedures for petitioning for
guardianship, rightly, include significant protections for the alleged
incompetent.
Attorney-prepared petitions should be encouraged - due process and
notice standards properly prepared avoid needless delay in necessary
petitions and aid in more efficient use of limited court resources,
while protecting the rights of the alleged incompetent.
Alleged-incompetent adults who may have estates are protected under
SB
158 by the award of fees and costs only after a court determines
that guardianship appointment is indeed necessary. Further, the
legislation specifically provides for the exercise of judicial
discretion; it provides consideration of delineated factors upon which
findings must be based regarding whether the award would be inequitable
and therefore judicially denied.
Guardianship petitions involve a variety of circumstances and
factors; presiding judges are in the best position to weigh those
circumstances and factors in a case, including the award of fees and
costs for attorneys who have petitioned when (after judicial review)
guardian appointment was warranted.
Hannah C. Dugan
Milwaukee
SB 158 not needed, would interfere with active resistance of
unwanted guardianships.
The Wisconsin Coalition for Advocacy recently submitted written
testimony against SB 158
in response to Sen. Darling's November article. While Sen. Darling
alludes to some opposition to the bill, our testimony explained the
opposition more specifically. In addition, readers should be aware that
SB
158 does not represent a consensus of opinions on the issue.
The Wisconsin Coalition for Advocacy, which is the state's protection
and advocacy agency for persons with disabilities, opposes SB 158.
This bill would overturn the holding in In re Guardianship and Protective
Placement of Evelyn O. (214 Wis. 2d 433 (Ct. App. 1997)), and
would require the ward's estate to pay the petitioner's attorney fees
and costs in a guardianship and protective placement proceeding unless
the court made an affirmative finding that it would be inequitable to do
so. To make this change would be tantamount to requiring persons facing
guardianship and protective placement to "supply bullets to their
adversaries," to use the words of the Court of Appeals.
We believe that this change would place a chilling effect on a person
who wished to contest proposed guardianship and protective placement
proceedings. The harder the person fought the proceedings, the more the
bill would run up for both their own attorney as well as the attorney
(or attorneys if there are multiple petitioners) for those seeking the
guardianship and possibly protective placement. In addition, the person
may have to pay for experts for both sides of the case. This conflict
between resisting a legal proceeding that may have profound effects for
the individual and concerns about potential financial liability if the
individual loses the contest, creates a fundamental unfairness. Giving
the court the option of not ordering the payment of fees after the
proceedings are over will do little to help the person in the midst of
the proceedings.
We are aware that there is concern that some persons may not receive
the benefits of guardianship and protective placement if this change is
not made. However, this has not emerged as a major problem in the
decades that the guardianship and protective placement statutes have
existed. Existing law provides two possible remedies when family members
or concerned friends do not have the financial resources to hire an
attorney to pursue a guardianship. The first is that the county may
provide assistance in petitioning for guardianship and protective
placement as a protective service. (See Wis. Stat. §§
55.06(1)(a), (b), and (c).) Under these provisions county protective
services agencies may provide assistance in petitioning for guardianship
and protective placement, with fees to the individual or petitioner
based on ability to pay. Second, the law requires a guardian ad litem in
every guardianship case. This person, who is an attorney, can move the
case forward if the proceeding is uncontested and he or she believes
that the guardianship is in the best interests of the individual.
Thus, we do not see a need for this legislation and if it is passed
we believe it will substantially interfere with the ability of a person
to actively resist an unwanted guardianship and protective
placement.
Wisconsin Coalition for Advocacy
Dianne Greenley, attorney, mental health advocacy
Jeff Spitzer-Resnick, managing attorney, development disabilities
advocacy
Legislative Update
A public hearing on SB 158
was held on Nov. 1, 1999. Action on the bill is still pending in the
Senate Judiciary and Consumer Affairs Committee.
Editors
Remedy for outrageous copy costs of medical records
Although there appears to be some modest hope that the state
Legislature will pass a bill limiting the fees chargeable for medical
records requests in situations where lawsuits have not been filed (see
the June 1999 Wisconsin
Lawyer), I write to suggest that attorneys have another remedy
for the outrageous prices being charged by some medical records copying
firms and medical facilities; to wit, the contract theory of
unconscionability. Simply because these medical facilities have the
absolute monopoly on a patient's records does not mean that they can
charge whatever they want. In Discount Fabric House v. Wis. Tel.
Co., 117 Wis. 2d 587, 601, 345 N.W.2d 417 (1984), the supreme court
quoted with approval the following language:
"Where goods and services can only be obtained from one source ...
the choices of one who desires to purchase are limited to acceptance of
the terms offered or doing without. Depending on the nature of the goods
or services and the purchaser's needs, doing without may or may not be a
realistic alternative. Where it is not, one who successfully exacts
agreement to an unreasonable term cannot insist on the court's enforcing
it on the ground that it was 'freely' entered into, when it was
not."
Additionally, Wis. Stat. Section
425.07, a statute dealing with unconscionability in consumer
transactions, also may be a tool available in most medical records
requests, and it provides for not only a remedy, but a penalty for the
unconscionable conduct.
I suggest that in response to unconscionable charges, a letter be
sent objecting to the charges as unconscionable, a reasonable amount
tendered (see Wis. Admin. Code § HSS 17.05 as an example for
reasonableness), and an explanation provided that if the tendered amount
is not accepted in full satisfaction of the charge or some other
reasonable solution is agreed upon, suit will be filed and an injunction
also may be sought to bar similar conduct in the future. With the proper
plaintiff, this problem also could be amendable to a class action suit
to recover the monies extorted in the past.
Attorneys whose retainer agreement charges back to the client the
costs for obtaining medical records probably have an ethical duty to
fight unconscionable charges for medical records and not simply pass on
those costs to our clients under the notion that, if we have somehow
obtained a substantial enough recovery, they should hopefully overlook
this minor outrage and injustice to which we have allowed them to be
subjected.
John B. Edmondson
Appleton
Legislative Update
SB
195 has already passed the Senate with a 26 - 7 vote; had a public
hearing in the Assembly Insurance Committee on Jan. 20, 2000; and now
awaits further action.
Editors
Feedback sought on mandatory court forms
My compliments to Attorney Nispel for his informative and even-handed
article on mandatory
forms in the December 1999 Wisconsin Lawyer. In addition to
contacting either Attorney Olsen or Attorney Fullin, individuals with
comments or concerns about any of the state forms can contact me. The Forms
Committee relies on the input of form users to do our work, so I
encourage members of the Bar to contact us with their ideas and
suggestions.
John Murphy, Chair,
Records Management Committee Forms Subcommittee
What Has Been the Most Important, Most Personally Satisfying Use of
Your Legal Training?
"Recently, a door-to-door petitioner pompously told me, 'What I'm
doing is more important than anything you've ever done in your whole
life.' Then he asked what I did. I told him I was a heart surgeon."
That encounter started Milwaukee attorney Ellen Kozak thinking about
important things she thought she'd done in her life, starting with
fishing a friend's brother out of a lake when he fell in (she was 8, he
was 5).
Of the most important, personally satisfying things she's done over
her 30-year law career, Kozak counted the following as The Big One:
"A long-time client, a working class African American woman, called
me very alarmed. Her 19-year-old daughter was engaged to a guy she'd
known a short while. The guy's cousin told the couple to go out and buy
whatever they wanted, with her writing checks for the purchases, and the
cousin would - as a wedding present - give her the money to cover the
checks. The fiancé took the purchases (mostly expensive things for
himself) to show the cousin and get the money. Both men disappeared.
"My client thought her daughter - a single mother who held a
minimum-wage job - had written about $3,000 worth of bad checks. 'What
am I going to do?,' my client pleaded. 'She'll go to jail!'
"'You're going to do what they do in the suburbs,' I responded.
'Borrow the money to cover the checks from your credit union, then take
it out of her hide for being so stupid.'
"My client borrowed $3,000 from the credit union, but it turned out
the girl had written $8,000 in bad checks. I did a fast dance on her
behalf, using the $3,000 partly for my (minimal) fee, and partly for
paying off the smaller checks. We gave all the others a down payment and
an assurance that I would get money from the girl once a month (enough
to cover minimum payments), that I knew her mother and her family, that
we'd make sure she paid the debts in full - and I persuaded them (and
her bank) not to bring in the district attorney.
"Every creditor agreed, and every month the girl brought in her
money. I'd put it into a trust account I had established for her and use
it to make the payments. Eventually, every bad check she'd written was
satisfied. She had no police record. She even established a decent
credit history as a result of the payment of those involuntary
loans.
"In the meantime, she went back to school, and qualified in a medical
technical field. So instead of being one more statistic - an unwed
mother with a police record (or even jail time) and no future - she now
has a career and is an upstanding member of the community. She lived
with her mother while paying off this debt, and her daughter had the
benefit of a responsible parent and grandparent at home, and is now
college-bound."
What's Your Most Rewarding Experience?
The Wisconsin Lawyer is considering an article on
experiences lawyers find the most personally rewarding. Please send your
experiences to Joyce Hastings, editor, at the State Bar by email or by letter to the State
Bar of Wisconsin, P.O. Box 7128, Madison, WI 53707-7158.
Wisconsin Lawyer