Sunday, July 1, 2012

How to get rid of a predatory professional guardian or conservator in Oregon.

IMPORTANT DISCLAIMER: There are no predatory professional fiduciaries in Oregon. Every single professional guardian or conservator in the state of Oregon is a wonderful, hard working, ethical, and caring person. Thus, the legal tactics discussed below are entirely hypothetical.

With the above disclaimer in mind, let's talk about how to get rid of an unwanted professional fiduciary. (A fiduciary, for purposes of this article, is a court-appointed guardian or conservator.) Some Oregon elder law lawyers think it is impossible to get rid of a court-appointed fiduciary—that once appointed the fiduciary is there for the life of the elder. There is a lot of evidence for this opinion, but I am not so pessimistic.

I may be crazy enough to believe that that there are ways to dislodge an oppressive professional guardian or conservator, but I am not so crazy as to think it is easy. If you are contemplating the strategy laid out in this article be assured that the road is a difficult and costs are high. It should not be attempted by anyone short on time, money, or patience. People email me all the time with horribly sad stories about the court-appointed fiduciary who is making their family miserable. They ask me to help and, promise to pay me ten dollars a month for a thousand years if I will take the case. I don’t take any of them. This is a tough job requiring a lot of work on my part. It can’t be done on the cheap no matter how heart rending the story.

If you have decided you have what it takes--emotionally and financially to try it--the first thing to do is map out the players.

The professional fiduciary.

Who is it? What is the fiduciary’s reputation in the elder law community. Does the fiduciary avoid or embrace litigation? Does the fiduciary avoid or embrace alternative dispute resolution techniques?

The professional fiduciary’s lawyer.

We ask the same questions about the lawyer as we do about the fiduciary plus a couple more. The big question is who is running the show? Some fiduciaries control their lawyers. Others trust their lawyer to handle all legal matters and do whatever the lawyer says, no matter how crazy it is. We need to know who is making the decisions.

The judge

Who is the judge? Judges and court staff have favorites. You want to know whether the fiduciary or the lawyer is a teacher’s pet. At some point the judge appointed the fiduciary. We must at all costs avoid saying, suggesting or implying that the judge was wrong when she initially made the appointment. This is doubly true if the fiduciary or the lawyer representing the fiduciary is a court favorite.

The family and the plan

In order for this to work the family has to be fully lawyered up and they have to present a united front. If the family is squabbling, any attempt to remove a fiduciary is doomed. One of the common reasons for appointing a professional fiduciary is that the family cannot agree on a care plan for the elder. If that conflict still exists the chances of getting the fiduciary removed or replaced is pretty much nil.

There are two common roadblocks to family unity, either of which will doom an attempt to remove a professional fiduciary.

One roadblock is a passive attorney for the elder. Often the elder has an attorney, maybe a court-appointed attorney, who is more interested in keeping good relations with the fiduciary or the fiduciary’s attorney than being aggressive in protecting the elder. If the lawyer for the elder is not on board, you will have to throw in the towel. No matter how united the rest of the family is, you can't get there without the cooperation of the lawyer who represents the elder.

The other common roadblock is a recalcitrant sibling. One child, usually the child who petitioned to have the fiduciary appointed, may have a loyalty to the situation he or she helped create. You have to get this sibling on board with the plan if you have any chance at all. Once you have the sibling on board you need the sibling’s lawyer on board. This can be a problem.

Elder law lawyers and professional fiduciaries feed off of each other. Normal people don’t know professional fiduciaries. Elder law lawyers do. Oregon elder law lawyers recommend the professional fiduciaries they know. When a fiduciary gets hired because of the lawyer’s recommendation, the fiduciary returns the favor by hiring the elder law lawyer on other cases. If your Oregon elder law lawyer recommends a certain fiduciary, don’t be surprised if the lawyer has previously represented that fiduciary. Once this mutually beneficial relationship has been going on for a while, the lawyer is understandably unhappy to hear that his client now wants to remove the same fiduciary the lawyer recommended earlier. The client will have to be firm in his directions to the lawyer, or, in some cases, get a new lawyer.

If the members of the family and their lawyers cannot unite in the plan to remove or replace the fiduciary, it is not going to work. If the family is a loggerheads about what to do, but not actually shooting at each other, I recommend elder mediation. There are good mediators who work with the families of elders to bring families back together. They aren’t cheap, but they charge less that lawyers and do more to unite families than lawyers have ever done.

Many people who come to me for help getting rid of a court-appointed guardian or conservator have a different plan. They want to make a list of all the bad things the fiduciary did and use the list to get the judge to un-appoint the fiduciary. This plan is always attractive to clients, it being a lot easier to point out other peoples' faults than to heal self-inflicted wounds that have plagued the family for years. The plan involving a list of misdeeds by the fiduciary doesn't work.

So let's assume that the family is united. The unity may be fragile, limited even to a mediated family agreement regarding the future of the elder, but that is enough. At this point the family member with the best relationship with the fiduciary—usually the family member who started the legal proceedings in the first place—simply asks the fiduciary to step aside in favor of a different, competent guardian or conservator.

Lawyers under appreciate the usefulness of asking for what they want. Somewhere somebody taught them that it is better to bluster and threaten. It is not. Often when I want to pursue a legal plan I will simply call up all the other lawyers, tell them what I want, and ask if it is okay. Many times they simply agree. I have had cases in which I got the consent of several different lawyers for every step of a legal plan before ever writing a single legal document.

If the family is united and makes a polite request that the existing guardian or conservator step aside, the court-appointed fiduciary is under incredible pressure to comply with the request. The family does not have to point to wrongdoing. It simply has to say that all members feel a different guardian or conservator would better serve the needs of the family. The fiduciary has no reason to stay other than the economic benefit it receives, and no fiduciary ever wants to maintain the she is holding onto the case for the money.

If the fiduciary refuses to step aside after being asked, you can then petition the court. At this point you still do not have to list the misdeeds of the fiduciary. You simply, united as a family, ask the court to appoint a different, but equally competent guardian or conservator.

No plan is perfect. This one is not guaranteed and there may be others, but I have seen a lot of different families and a lot of different lawyers try to dislodge an unwanted professional fiduciary who had embedded him or herself into a client's family. This is the only plan I have ever seen work.