By: David J. Ferry, Jr., Esq.
Ferry Joseph, P.A.
With the population of older Americans on the rise, issues related, in general, to elder law, and specifically to guardianship actions, are requiring greater attention. Of course guardianship actions do not solely affect the elderly, as many are filed in connection with younger adults who, for one reason or another, lack the ability to care for themselves and/or their property. It is of utmost importance for the parties involved in guardianship actions to be mindful of the extraordinary relief that is ultimately being requested therein. A guardianship action, if successful, essentially divests the disabled person of the ability to make decisions for him or herself while authorizing another person to make those decisions in his or her stead.
Guardianship actions are an essential tool in protecting some of our most vulnerable citizens, however, they require careful consideration and oversight to ensure that serving the best interests of those individuals remains paramount. While the vast majority of guardianship actions are warranted and filed for proper cause there are, unfortunately, some instances where they have been filed for nefarious reasons, such as gaining control of the alleged disabled persons assets. To that end, the Chancery Court utilizes the practice of appointing an attorney ad litem to represent the interests of the alleged disabled person in guardianship actions. By appointing the ad litem, the Court is introducing an independent third-party into the guardianship action to safeguard the interests of the alleged disabled person throughout the pendency of the action and thereafter, when necessary. How the ad litem undertakes discharging his or her duties varies from case to case and from ad litem to ad litem.
Chancery Court Rule 176(a) requires the appointment of the ad litem in all cases upon the filing of a petition for the appointment of the guardian of the person and/or property of an adult person alleged to be disabled, if such person is not otherwise represented by counsel. The rule itself gives little guidance to the ad litem as to the actions to be taken other than to state that the ad litem shall represent the person alleged to be disabled as if engaged by such person.
The Register in Chancery keeps a list of attorneys who are willing to be appointed as ad litems. After the petition is filed, the preliminary order is presented to a master of the Court and at that time, the master will appoint a member of the Delaware Bar as ad litem. That preliminary order will also provide for the date and time of the hearing, the process for petitioner to give notice of the petition to interested parties, and provides a due date for the filing of the attorney ad litem’s report.
In the great majority of cases, the role of the attorney ad litem is fairly simple. The custom has been that the attorney ad litem reviews the petition, speaks to the attorney for the petitioner, and schedules a time to meet with the alleged disabled person. Many of the meetings with the disabled person are conducted in a hospital, nursing home, or a private residence. In some cases, the alleged disabled person may be brought to the ad litem’s office for the initial meeting.
There is no standard set of questions that are asked by an ad litem at the initial meeting with the alleged disabled person. In some cases, the alleged disabled person is unable to speak or provide any meaningful information. In those cases, the interview is very brief. In other cases, the alleged disabled person may have a great deal of information to provide and the ad litem should carefully listen to and consider the responses of the disabled person. Most ad litems conduct something in the nature of what is known as a mini-mental state exam. They ask orientation questions of the disabled person to be sure that they know the date, the year, the season, the current president of the United States, who are their family, what are their assets, and what circumstances may have caused their alleged disability. This meeting is usually conducted privately between the ad litem and the alleged disabled person, but, in some circumstances, in order to avoid the alleged disabled person being fearful or concerned about the interview, the ad litem would have another person sit in on the meeting such as a close family member, friend, or medical provider.
After completing this initial interview, the ad litem has the discretion to complete whatever additional investigation they deem necessary. Most ad litems will want to look at medical records if they are easily available. Many ad litems will want to speak to the family doctor, nursing home administrator, or charge nurse if the disabled person is in a hospital or nursing home to get some background information and to confirm the accuracy of the information provided by the alleged disabled person. In many cases, after the initial interview, the follow- up, and discussions with others, the ad litem will quickly come to realize that the alleged disabled person is, in fact, in need of a guardian.
After completing whatever interviews and investigation the ad litem deems necessary, the ad litem prepares a report to the Court. The report is generally three to five pages in length, it states in numbered paragraphs what investigation was undertaken, what information was received, what decision the ad litem has made regarding the need for a guardian, and the basis for that decision. In the routine uncontested cases, the ad litem generally agrees that a guardian is appropriate and states such in his or her report. The ad litem is not required to state whether they believe that the petitioner is the appropriate party to be appointed guardian, but can certainly do so. In some cases, the ad litem may feel that some other person should be guardian or that the guardianship should be limited in some way.
The master or chancellor who eventually decides the question of appointing a guardian will often rely heavily upon the ad litem’s input. To a certain extent, the ad litem is something akin to a Court appointed investigator who is able to provide sufficient background information to allow the master or chancellor to decide what is in the best interest of the disabled person.
In contested cases, the role of the ad litem may be increased. The ad litem will be invited to attend any contested hearing and give his or her input into the appointment of a guardian and who should be guardian. The ad litem can participate in the trial to whatever extent they deem necessary including, but not limited to, calling witnesses, cross-examining witnesses, and participating in all aspects of the trial. However, in the great majority of cases, the role of the ad litem is much less than the role of an attorney representing one of the parties that has initiated or responded to the guardianship petition.
In most cases, the role of the attorney ad litem ends upon the appointment of the guardian. However, the Court may ask the ad litem to continue to be involved and may ask the ad litem to follow up on the handling of the guardianship and perhaps even provide an additional report in the future. The ad litem could be reappointed again if necessary.
The role of the ad litem can create some ethical concerns. Guidance can be obtained from Rule 1.14 of the Delaware Lawyers Rules of Professional Conduct. Rule 1.14(a) indicates that when a client’s capacity to make decisions is diminished, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. However, under sub-paragraph (b), when the lawyer believes that the client has diminished capacity and is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action including the seeking of the appointment of a guardian ad litem, conservator or guardian. The majority of ad litems, therefore, usually determine that it is in the client’s best interest that a guardian be appointed to protect the alleged disabled person’s interests.
The Delaware Supreme Court has addressed the role of the attorney ad litem. In the Matter of Charlotte F. Tavel, 661 A.2d 1061 (Del. Supreme, 1995), the Court addressed Rule 176(a) and the action of the ad litem who joined in the petitioner’s petition to withdraw a feeding tube from an elderly client suffering from a terminal illness. The Court stated that Chancery Court Rule 176(a) provides great lattitude to the ad litem to determine the position he or she will advocate and the language of that rule clearly does not limit the attorney ad litem to opposing the position the guardian takes. The Court noted the Cruzan case [Cruzan v. Director, MO. Dept of Health, 497 US 261 (1990)] and stated that the record in Tavel reflected that the ad litem acted in good faith and properly discharged his role as an independent advocate for the disabled person in taking the action that supported the guardian’s petition to withdraw a feeding tube. It affirmed the Court of Chancery’s decision that the petitioner had proven by clear and convincing evidence that the disabled person would not want the life-sustaining feeding tube if she were competent to make that decision for herself.
This article is intended to provide general information and should not be viewed as providing specific recommendation or advice. You should consult with competent counsel for your specific questions or issues. Ferry Joseph, P.A attorneys are experienced in Estate and Guardianship matters in Delaware. Please feel free to contact us if you have any additional questions.
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Delaware Guardianship Actions and the Ethical Considerations in Chancery Court
By: David J. Ferry, Jr., Esq.
Ferry Joseph, P.A.
With the population of older Americans on the rise, issues related, in general, to elder law, and specifically to guardianship actions, are requiring greater attention. Of course guardianship actions do not solely affect the elderly, as many are filed in connection with younger adults who, for one reason or another, lack the ability to care for themselves and/or their property. It is of utmost importance for the parties involved in guardianship actions to be mindful of the extraordinary relief that is ultimately being requested therein. A guardianship action, if successful, essentially divests the disabled person of the ability to make decisions for him or herself while authorizing another person to make those decisions in his or her stead.
Guardianship actions are an essential tool in protecting some of our most vulnerable citizens, however, they require careful consideration and oversight to ensure that serving the best interests of those individuals remains paramount. While the vast majority of guardianship actions are warranted and filed for proper cause there are, unfortunately, some instances where they have been filed for nefarious reasons, such as gaining control of the alleged disabled persons assets. To that end, the Chancery Court utilizes the practice of appointing an attorney ad litem to represent the interests of the alleged disabled person in guardianship actions. By appointing the ad litem, the Court is introducing an independent third-party into the guardianship action to safeguard the interests of the alleged disabled person throughout the pendency of the action and thereafter, when necessary. How the ad litem undertakes discharging his or her duties varies from case to case and from ad litem to ad litem.
Chancery Court Rule 176(a) requires the appointment of the ad litem in all cases upon the filing of a petition for the appointment of the guardian of the person and/or property of an adult person alleged to be disabled, if such person is not otherwise represented by counsel. The rule itself gives little guidance to the ad litem as to the actions to be taken other than to state that the ad litem shall represent the person alleged to be disabled as if engaged by such person.
The Register in Chancery keeps a list of attorneys who are willing to be appointed as ad litems. After the petition is filed, the preliminary order is presented to a master of the Court and at that time, the master will appoint a member of the Delaware Bar as ad litem. That preliminary order will also provide for the date and time of the hearing, the process for petitioner to give notice of the petition to interested parties, and provides a due date for the filing of the attorney ad litem’s report.
In the great majority of cases, the role of the attorney ad litem is fairly simple. The custom has been that the attorney ad litem reviews the petition, speaks to the attorney for the petitioner, and schedules a time to meet with the alleged disabled person. Many of the meetings with the disabled person are conducted in a hospital, nursing home, or a private residence. In some cases, the alleged disabled person may be brought to the ad litem’s office for the initial meeting.
There is no standard set of questions that are asked by an ad litem at the initial meeting with the alleged disabled person. In some cases, the alleged disabled person is unable to speak or provide any meaningful information. In those cases, the interview is very brief. In other cases, the alleged disabled person may have a great deal of information to provide and the ad litem should carefully listen to and consider the responses of the disabled person. Most ad litems conduct something in the nature of what is known as a mini-mental state exam. They ask orientation questions of the disabled person to be sure that they know the date, the year, the season, the current president of the United States, who are their family, what are their assets, and what circumstances may have caused their alleged disability. This meeting is usually conducted privately between the ad litem and the alleged disabled person, but, in some circumstances, in order to avoid the alleged disabled person being fearful or concerned about the interview, the ad litem would have another person sit in on the meeting such as a close family member, friend, or medical provider.
After completing this initial interview, the ad litem has the discretion to complete whatever additional investigation they deem necessary. Most ad litems will want to look at medical records if they are easily available. Many ad litems will want to speak to the family doctor, nursing home administrator, or charge nurse if the disabled person is in a hospital or nursing home to get some background information and to confirm the accuracy of the information provided by the alleged disabled person. In many cases, after the initial interview, the follow- up, and discussions with others, the ad litem will quickly come to realize that the alleged disabled person is, in fact, in need of a guardian.
After completing whatever interviews and investigation the ad litem deems necessary, the ad litem prepares a report to the Court. The report is generally three to five pages in length, it states in numbered paragraphs what investigation was undertaken, what information was received, what decision the ad litem has made regarding the need for a guardian, and the basis for that decision. In the routine uncontested cases, the ad litem generally agrees that a guardian is appropriate and states such in his or her report. The ad litem is not required to state whether they believe that the petitioner is the appropriate party to be appointed guardian, but can certainly do so. In some cases, the ad litem may feel that some other person should be guardian or that the guardianship should be limited in some way.
The master or chancellor who eventually decides the question of appointing a guardian will often rely heavily upon the ad litem’s input. To a certain extent, the ad litem is something akin to a Court appointed investigator who is able to provide sufficient background information to allow the master or chancellor to decide what is in the best interest of the disabled person.
In contested cases, the role of the ad litem may be increased. The ad litem will be invited to attend any contested hearing and give his or her input into the appointment of a guardian and who should be guardian. The ad litem can participate in the trial to whatever extent they deem necessary including, but not limited to, calling witnesses, cross-examining witnesses, and participating in all aspects of the trial. However, in the great majority of cases, the role of the ad litem is much less than the role of an attorney representing one of the parties that has initiated or responded to the guardianship petition.
In most cases, the role of the attorney ad litem ends upon the appointment of the guardian. However, the Court may ask the ad litem to continue to be involved and may ask the ad litem to follow up on the handling of the guardianship and perhaps even provide an additional report in the future. The ad litem could be reappointed again if necessary.
The role of the ad litem can create some ethical concerns. Guidance can be obtained from Rule 1.14 of the Delaware Lawyers Rules of Professional Conduct. Rule 1.14(a) indicates that when a client’s capacity to make decisions is diminished, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. However, under sub-paragraph (b), when the lawyer believes that the client has diminished capacity and is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action including the seeking of the appointment of a guardian ad litem, conservator or guardian. The majority of ad litems, therefore, usually determine that it is in the client’s best interest that a guardian be appointed to protect the alleged disabled person’s interests.
The Delaware Supreme Court has addressed the role of the attorney ad litem. In the Matter of Charlotte F. Tavel, 661 A.2d 1061 (Del. Supreme, 1995), the Court addressed Rule 176(a) and the action of the ad litem who joined in the petitioner’s petition to withdraw a feeding tube from an elderly client suffering from a terminal illness. The Court stated that Chancery Court Rule 176(a) provides great lattitude to the ad litem to determine the position he or she will advocate and the language of that rule clearly does not limit the attorney ad litem to opposing the position the guardian takes. The Court noted the Cruzan case [Cruzan v. Director, MO. Dept of Health, 497 US 261 (1990)] and stated that the record in Tavel reflected that the ad litem acted in good faith and properly discharged his role as an independent advocate for the disabled person in taking the action that supported the guardian’s petition to withdraw a feeding tube. It affirmed the Court of Chancery’s decision that the petitioner had proven by clear and convincing evidence that the disabled person would not want the life-sustaining feeding tube if she were competent to make that decision for herself.
This article is intended to provide general information and should not be viewed as providing specific recommendation or advice. You should consult with competent counsel for your specific questions or issues. Ferry Joseph, P.A attorneys are experienced in Estate and Guardianship matters in Delaware. Please feel free to contact us if you have any additional questions.