Letters

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