DON’T FORGET THE THIRD DEGREE IN ADULT GUARDIANSHIPS AND CONSERVATORSHIPS
October 27, 2010 § 1 Comment
Frank Lewis appeared personally in court with his attorney and joined in a request that his son be appointed his conservator. The idea for the conservatorship arose out of some financial dealings by other members of the family who had powers of attorney. After a hearing with no record, the Chancellor ruled that a guardian should be appointed instead, due to Frank’s physical infirmities and need for regular kidney dialysis. The judge appointed Frank’s then attorney as guardian of his estate, and his son as guardian of the person, and cancelled the powers of attorney.
Frank retained another attorney and appealed the Chancellor’s decision.
The Court of Appeals reversed the trial court and remanded for further proceedings, In The Matter of The Guardianship of the Estate of Frank Lewis, decided October 5, 2010.
There are several interesting arguments made by both sides, and I commend the decision for your reading, but the issue of interest in this post is that proper notice of the hearing was not given.
There is no question that Frank Lewis was present at the hearing with his retained attorney. Ordinarily, a party’s presence in court would submit him voluntarily to the jurisdiction of the court. In order to establish a guardianship, however, MCA § 93-13-281 requires that the proceedings shall join as defendants two of his adult kin within the third degree by proper process, joinder or waiver. The petition did name two adult relatives within the third degree, but there is no evidence in the record that they were properly summoned, joined, waived process or personally appeared before the court. The court of appeals reversed and remanded to allow proper notice to two relatives within the third degree and for the court to hear evidence whether Frank does need a guardian.
The moral of the story is that guardianships and conservatorships are creatures of statute, and the statutes must be strictly complied with. If there are two relatives within the third degree, you must join them. If there are not two relatives within the third degree, the court is required to appoint a guardian ad litem for the infirm individual.