Adult Guardianship Cases-Procedural Issues Brought About By Existence of Disagreeing Family Members
This office found itself recently filing an adult guardianship in Cook County recently amidst a sea of ethical and human issues. The father (in his early 80s) was allegedly being victimized by his son. Recently, the daughter had sought guardianship to correct this situation, and had produced a medical report that on each paragraph referred to a clinical psychologist’s report by reference. The doctor had even informed us before filing our action that he was reluctant to get into the middle of this highly volatile family situation, but we had taken the chance of filing anyway, hoping that we could get court permission to have another medical report authorized.
When we filed, the father (or perhaps his son) contacted a law firm. This, it turned out, was the same law firm that had changed the father’s revocable living trust, and related estate planning paperwork, about the same time as when the guardianship papers were filed. Perhaps coincidentally (or not) the change in question was to remove the daughter as an alternate trustee (behind the father, who was still trustee), and reconvey the father’s real estate to be consistent with this latest amendment.
We filed (but did not immediately notice up) a motion to disqualify this law firm from being able to represent the father in this guardianship proceeding. Settlement discussions ensued, the gist of which were that our overriding goal was to see to the father’s protection. If this could be achieved through the appointment of a neutral guardian (or even a dismissal order with an appropriately protective settlement order in place) we could then drop our request that the daughter be named as the father’s guardian.
At the same time as these events were taking place, there was an action for an order of protection by the father (supposedly at his initiation) against the daughter, and another one by the daughter against the son. Both eventually were dismissed.
The father’s legal counsel brought a motion for sanctions against the daughter, based on the technical imperfections of her supporting medical report. We then noticed up our motion to disqualify against the father’s law firm, since at this point obviously our settlement negotiations had broken down. The court dismissed the father’s motion for sanctions, since through records requests we had obtained (very reluctantly on our doctor’s part) the original of his written report. However, the court cautioned that we could still be facing a similar motion if we proceeded to hearing with as limited of a case as we appeared to have at that point. Meanwhile, the court denied our motion to disqualify counsel based on conflict of interest grounds, but held open the possibility that she might rule differently once we called the preparer of the recent trust amendments at a court hearing or noticed him for a deposition.
Eventually, the daughter decided to withdraw her petition, rejecting efforts by counsel for both sides to work out a settlement agreement that would name a private agency to provide oversight over the handling of the father’s personal and financial affairs.
In conclusion, the procedural and evidentiary issues loomed rather large in terms of forcing the daughter to pull back from her ambitious goals in the beginning. Hopefully, however, the legal spotlight shone long enough and brightly enough that the son was deterred from inflicting any financial or other harm upon the father that might otherwise have occurred.