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What Is The Role Of The Ward’s Court-Appointed Attorney In A Guardianship Or Conservatorship In Michigan?

by | Aug 5, 2021 | Guardianships And Conservatorships |

 

The conservatorship of Britney Spears has drawn a lot of attention to how these protective proceedings work across the country, including the role of the various attorneys involved.  In 2008, a California judge approved the appointment of a conservator to oversee the estate and financial affairs of the pop star after a series of public breakdowns.  Originally, the conservators appointed by the court were her father Jamie Spears (who managed her estate and business opportunities) and lawyer Andrew Wallet (who managed her financial affairs).  The conservatorship remains in force as of 2021 and, during the last 13 years, Ms. Spears has not been in control of her finances or property.  Even her ability to enter into legal contracts is suspended and remains under the authority of her court-appointed fiduciaries.  The judge felt that Ms. Spears did not have the capacity to hire her own attorney to represent her own interests.  Therefore, the court had appointed attorney Samuel D. Ingham III in 2008 to be Ms. Spears’ legal counsel and has served in that role since the inception.

For over a decade, the #FreeBritney movement of concerned fans and legal advisors have publicly advocated for the court to terminate the conservatorship and allow Ms. Spears to regain control of her own affairs.  It was uncommon for a young woman to be under a conservatorship intended to manage the affairs of elderly or invalid people, and even more uncommon for such a situation to drag on for years when Ms. Spears has demonstrated the ability to generate millions of dollars of income.  The singer has been notably non-public about the issue for the vast majority of the time.  However, in a Zoom court proceeding on Wednesday, June 23, 2021, Britney Spears gave 23 minutes of testimony that shed light on the abuses that she suffered under the control of others.  She levied allegations that her father and other family members have abused their power and made thousands of dollars under her forced labor.  She indicated that her life is so micromanaged and under control of others that she couldn’t remove her IUD to have additional children and she couldn’t even pick the color of paint for her kitchen cabinets.

She also brought the role of her court-appointed attorney Mr. Ingham to the spotlight.  She accused him of discouraging her from speaking about these abuses in her case until recently.  She also accused him of never advising her of her right to file a petition or take other steps to terminate the conservatorship.  Afterwards, it came to light that Mr. Ingham was being paid upwards to $10,000.00 per week for his services.  Ms. Spears asked the court for her ability to select her own legal counsel.  In the fallout of this explosive testimony, Mr. Ingham filed papers asking to resign as her attorney on July 6, 2021.  A week later, the judge cleared Ms. Spears to hire her own attorney of choice to represent her.

Mr. Ingham’s representation left a number of questions about his role.  If he was appointed by the court, does he work for Britney Spears or does he work for the judge?  Why does the estate pay for this court-appointed attorney instead of the taxpayers?  Doesn’t he benefit financially from the conservatorship continuing forever?  Why isn’t this a conflict of interest?

In Michigan, a proposed ward in a guardianship or conservatorship is entitled to have legal counsel appointed to represent their interests under various statutes:

  • In a guardianship case involving an alleged incapacitated individual, if that individual wishes to contest the petition, to have limits placed on the guardian’s powers, or to object to a particular person being appointed guardian and if legal counsel has not been secured, the court shall appoint legal counsel to represent the individual alleged to be incapacitated. MCL 700.5305(3).  Also, if the individual alleged to be incapacitated requests legal counsel or the guardian ad litem determines it is in the individual’s best interest to have legal counsel, and if legal counsel has not been secured, the court shall appoint legal counsel.  MCL 700.5305(4).  If the individual is indigent, the state shall bear the expense of legal counsel.
  • In a guardianship case involving a developmentally disabled individual, “unless an appearance has been entered on behalf of the respondent, the court, within 48 hours of its receipt of a petition together with the other documents required…, shall appoint counsel to represent the respondent.” MCL 330.1615(2).  “If the respondent prefers counsel other than the counsel appointed, if preferred counsel agrees to accept the appointment, and the court is notified of the preference by the respondent or preferred counsel, the court shall replace the initially appointed counsel with preferred counsel.”  MCL 330.1615(3).  “If the respondent is indigent, the court shall compensate appointed counsel from court funds in an amount which is reasonable and based upon time and expenses.”  MCL 330.1615(4).
  • If a conservatorship or protective order petition is filed regarding property belonging to a minor, “the court may appoint an attorney to represent the minor, giving consideration to the minor’s choice if 14 years of age or older.” MCL 700.5406(1).

A person who is the subject of a conservatorship may also be entitled to have a court-appointed attorney appointed in the discretion of the probate judge.  The court may order that this attorney is paid for at the expense of the estate if there are sufficient funds to do so.  This is not considered a conflict of interest since the ward is, in a way, paying for his or her own legal representation.

An attorney appointed by the court has the same duties and responsibilities to their client as if the attorney was hired privately.  The court-appointed lawyer has a full attorney-client relationship with the prospective ward and all communications between them are privileged and confidential.  The attorney owes his or her loyalty to the client no matter who is actually paying for the fees, even if coming from court funds.  The court-appointed lawyer is tasked with representing the client’s wishes, even if the lawyer disagrees or believes the client’s wish is not in his or her best interests.  The task of reporting what is in the best interests of the proposed ward is the purview of the appointed guardian ad litem.  The lawyer should not substitute his or her own agenda for advocating the wants and desires of the client.

As such, the court-appointed attorney has the following duties to the client:

  • COMPETENCE: The ward has a right to a lawyer that is competent to handle guardianship or conservatorship matters in Michigan and is adequately prepared for hearings. If the matter at hand is beyond the skill level of the lawyer (and cannot be cured with reasonable research), then that attorney should step aside.
  • DILIGENCE: The ward has the right to a lawyer that will act with reasonable promptness and diligence in representing the client’s wishes. A lawyer that delays or prolongs a case to their client’s detriment (especially if motivated by payment from the estate) is not acting appropriately in the scope of their duties.
  • COMMUNICATION: The ward has the right to a lawyer that will keep him or her reasonably informed about the status of the case and comply with reasonable requests for information. In addition, the lawyer should explain the matter to the client to the extent reasonably necessary to permit the client to make informed decisions.  A lawyer that ONLY sees the client at court hearings is not living up to these responsibilities.
  • CONFIDENTIALITY: The ward has the right to have all communications to the lawyer remain privileged. The court-appointed lawyer cannot be compelled to testify about what the ward said.  This is distinct from the guardian ad litem who, even while a licensed lawyer, is not bound by attorney-client privilege and can report communications to the judge.
  • LOYALTY: The ward has the right to the absolute loyalty of the lawyer without conflicts of interest. The lawyer does not work for the conservator, the guardian or even the judge.  Any lawyer who is conflicted in fully representing the ward due to a duty owed to any other person should step aside.

If it is the wish of the ward to terminate the guardianship or conservatorship, then the lawyer should act diligently in filing a petition or motion to do so.  The lawyer should have regular contact with the ward to learn what these wishes are, to advise the client of the pros and cons of their course of action, and to gain all of the necessary information to properly advocate this position in court.  The lawyer should aggressively advocate these wishes even if the lawyer thinks in his or her independent judgment that it is not in the ward’s best interests.  Court-appointed attorneys should not forget this role even if they are being bankrolled by public funds or even from the estate itself.  Lawyers that cannot fulfill these responsibilities to their clients should step aside.

Unfortunately, it is not uncommon for court-appointed lawyers to neglect their roles.  While Mr. Ingham was being compensated well due to his client’s estate being rather wealthy, the vast majority of conservatorship estates have very modest assets in comparison.  The court-appointed lawyer’s meager compensation may lead them to pay little attention to their client or the case while they pursue higher-paying matters.  This is not acceptable.  A ward or their concerned family members has the absolute right to consult with an independent private attorney for a second opinion and to possible substitute the court-appointed lawyer who is neglecting their duties.  Unlike California law, Michigan permits a ward to select preferred counsel to represent them if they are unsatisfied with the court-appointed attorney.

Our skilled probate lawyers have years of experience representing clients in contested guardianship and conservatorship proceedings in all types of roles.  If you are unsatisfied with court-appointed counsel and want aggressive representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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