THE YOKE OF PROBATE

October 10, 2011 § 1 Comment

It looks like easy money. Grandma is sitting in your office with a fistful of greenbacks, asking you to open a guardianship so that she can get grandson into the county school. Momma is agreeable, daddy is in prison and will sign whatever you send him, and the child needs to get into school.

Before you file those papers and track down your chancellor, consider:

  • When you enter your appearance, you are responsible as attorney for the guardianship forever, or until the judge lets you out, or until the guardianship is closed, whichever occurs first.
  • There will be an accounting, or at least a reporting, requirement, for which you as counsel will be held responsible.
  • Your compensation will be fixed by the chancellor, and it may not be as much as you would like to charge.
  • You will be responsible to report to the court any misfeasance, malfeasance or neglect of duty by the fiduciary.

I encourage you to read UCCR 6.01 and 6.02 before you file that petition to open the guardianship. Your duty and liability as an attorney in a simple guardianship of the person is every bit as great as it is in a guardianship where the ward has thousands of dollars in the bank.

We regularly send out orders for lawyers to bring their accounts current in all probate matters, including guardianships of the person only. In guardianships of the person, we require a report at least every other year that (a) the guardianship continues to be necessary due to the age or circumstance of the ward, and (b) that no assets have come to the ward since the last report. It is not uncommon for lawyers to call and have some problem with that requirement. Some customary complaints:

  •  “I wasn’t paid enough to continue to do work in this case.” UCCR 6.01 expressly states that “When an attorney has once appeared for a fiduciary, in any respect, he may withdraw only with the consent of the Chancellor, after notice to the Chancellor, after notice to the client.” That rule also requires the fiduciary to be represented by a lawyer at all times. This means that once you appear, you are in it until someone takes your place or the matter is finally closed.
  • “I can’t find my fiduciary.” You are responsible to keep up with the guardian and his or her activities so as to advise the court as required by UCCR 6.02. You have some liability to the ward if the fiduciary receives assets of the ward and squanders them.
  • “This was only a guardianship for school purposes; why do we have to jump through all these hoops?” Because the law does not lower the protective bar for benefit of a ward “merely” because this is a guardianship of the person, and you, as attorney for the fiduciary, have a professional, legal, ethical and equitable duty to the ficuciary, the court and the ward.

I am not suggesting that you not file that guardianship action. I am suggesting that you read the rules and understand exactly what you and your client are taking on when you shoulder the yoke of probate.

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