Letters
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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.
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