Robert Dinerstein: I will do my best to answer your questions during this hour. I have read the two articles and am generally familiar with guardianship and conservatorship practices in D.C. and nationally (especially for people with mental disabilities). I do not know anything about the specific cases discussed in the articles other than what is in the articles themselves, but will comment on any of the issues in the articles where I can. One thing I would say by way of introduction: one of the big problems with guardianship is that many folks who need a guardian (at least a limited one) do not have one, while others who have them don't necessarily need one (and if they have one, the person may not be helping them as they should, which the articles show us).

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Arlington, Va.: I am a legal guardian for my elderly father, who has age-related dementia and resides in a nursing home. By his power of attorney, I manage his finances, prepare his taxes, etc. Though he has no durable power of attorney for health matters, I assist in making decisions about his personal and medical care. I have carried out these duties since 1999. Is it appropriate for me to take a small fee/salary for these duties? What would be fair, in terms of percentage? Thank you for your advice.

Robert Dinerstein: I think it is appropriate to seek to recover your reasonable fees, but you would be well-advised to advise the court of your intent to do before actually deducting monies. That way, you won't have problems with someone else later claiming that you were using your father's estate for your personal purposes. I don't think you should go via the route of a percentage, as that would be less sensitive to recovering for your actual expenses and reasonable fees.

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Arlington, Va.: Are these times when more people need a guardian? It seems everyone is anxious.

Robert Dinerstein: I think there are many times when, because of illness or mental disability, a person needs the assistance of someone to make decisions for them. That doesn't always mean they need a guardian--and even when they should have a guardian, a limited guardian, with limited powers, may be the way to go. Many people now recommend first looking to alternatives, such as durable power of attorney or health care directives, that are protective of the person's rights but not as much a denial of the person's autonomy as is a guardianship.

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Washington, D.C.: Do you feel from your knowledge that the D.C. Superior Court’s probate division is truly as poorly run and operated by legal professionals with questionsable ethical motivations as this post article suggests, and do these examples present a clear and accurate description of the judges and attorneys? I am sceptical of articles that present nothing but negative elements without and corresponding examination of the positive elements of the system, and would like your outside opinion. On a personal note, my family has been fortunate enough to have receieved the services of Attorney Robert Gazzola during our family's time of need and we have nothing but the highest praise for his professionalism and ethics.

washingtonpost.com: Rights and Funds Can Evaporate Quickly (Post, June 16)

Robert Dinerstein: This is an important question. I don't have personal knowledge of the attorneys discussed, nor, of course, do I know what the judges were thinking other than what is on the record and discussed in the articles. I do think that there needs to be a much better system of monitoring what guardians do, and insisting that they file the reports (at least every six months) that they are required to file. I also think that if there is a list of approved guardians and someone gets removed from that list for cause, it is hard to justify continuing to appoint the person to serve as a guardian for others.

I am happy you have had a good experience with your attorney. One thing I think the articles makes clear is that since the attorneys are supposed to represent and work for the incapacitated person, it is important that family members and the person him or herself keep in contact with, and feel free to ask questions of, the lawyer, to cut down on any chance of unethical or neglectful behavior.

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Hartford, Conn.: Is the D.C. Court the only example of this kind of fraud or are there other venues in the country that tolerate this kind of attorney malfeasance?

Robert Dinerstein: The problems identified in the article are not unique to D.C. As long ago as 1987, the Associated Press did a devastating critique of guardianship and conservatorship practices in virtually every state in the country. Following the article, the US House of Representatives created a committee to investigate the issue, and the American Bar Assocation sponsored a major conference, the results of which were called, Guardianship: An Agenda for Reform (1989), the so-called Wingspread Conference. More recently, in 2001, there was a follow-up conference, called the Wingspan conference. There also is a uniform guardianship and protective proceedings act, first written in 1982 and recently updated in 1997, which forms the basis for the DC statute and those of many other states.

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Washington, D.C. Probate Lawyer: Thank you very much for the Post's valuable series.

It strikes me, as a probate, trust and estate lawyer originally trained in NY and in DC for the past 13 years, that much of the fault is institutional here.

-The DC Superior Court has no true "probate" division. Two Superior Court judges - only one highly regarded, and neither with any practice record in the field - are simply assigned to hear trust, estate, and guardianship matters. This is not what most courts in most urbanized areas do. There needs to be a DC Trust, Estate, and Guardianship Court, and the taxpayers shouldn't have to pay for it - it should be funded entirely from filing and related fees, like in Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Maryland, and Florida.

-The function of keeping track of records, reports, court dockets, documents and fiduciary-appointments is split among three different officials. The Clerk of Superior Court is responsible for contested litigation dockets. The probate division clerk is separately responsible for fiduciary appointment matters. The Registrar of wills handles both pre-application recordations and also uncontested small-estate matters, where there's a history of some abuse and sloppiness. There needs to be a single Trust, Estate, and Guardianship Registrar, who should also be the clerk of that court. The taxpayer shouldn't pay for it - it should be funded from user fees, like in New York and New Jersey.

-A single official, appointed by the DC Trust, Estate, and Guardianship Court, should oversee appointments, independently examine fiduciary conduct, audit fiduciaries, indepedently report to the Court, the US Attorney and others about any actual or suspected misconduct, and even have the right to temporarily step in and take over to prevent imminent harm - all subject to Court supervision. Fiduciaries should be required at the time of appointment to waive all privileges so as to allow this independent official - like NY's "Public Administrators" - to look into their activities. And this "Public Administrator" should have the ability to review litigation and fees brought or charged by fiduciaries. This wouldn't cost a penny - in NY, the Public Administrator's budget is funded exclusively from a fee from litigation fee proceeds earned by fiduciaries.

The DC trust, estate and guardianship system is broken because the DC authorities refuse to look elsewhere for better examples. Go ask people in the Court and the Registrar - they have no idea. There isn't really a single nationally- (or even regionally-) respected expert employed by the Superior Court or the DC Registrar of Wills.

-No fiduciary should be appointed without being personally examined for fitness, intelligence, and honesty, possibly along the lines of what NY does under Article 81 of the NY Mental Hygiene Law.

What I'm proposing may sound complicated and expensive, but actually wouldn't cost a penny, and would work far, far better than having a civil-rights judge and an uninterested traffic judge supervise a bunch of semi-literate clerks.

Any thoughts?

Robert Dinerstein: I agree with you that it is important that DC look to what other jurisdictions are doing, not to borrow those practices unthinkingly but to get ideas about how to run the system in a more appropriate manner. As you know, though some of the readers may not, it is not practical for a judge to be taking the time to determine whether guardians or conservators are filing their reports on time or other meeting other requirements. That's a clerical function, and clearly one that is not working well based on what the articles uncovered. However, at the front end, there needs to be greater attention to such issues as whether a guardian is needed at all; if so, whether the proposed guardian is appropriate (at a minimum, it cannot be a person with a conflict of interest); are there less retrictive alternatives to guardianship that have been examined; is the evidence of the person's incapacity clear; etc. Under DC law, moreover, the presumption is that the allegedly incapacitated person be present at the hearing, but it appeared the person was not there quite often.

Another thing I would like to see, which exists in Michigan (and in some foreign countries): limit the guardianship to some period of time, say five years, and require the person seeking to retain the guardianship to come in and make the case for it again. (This is in addition to periodic review of the guardianship, which should occur in any event).

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Washington, D.C.: Is probate law required at all law schools?

Robert Dinerstein: Probate law--usually called "Wills, Trusts and Estates" or some variation--is rarely required in law schools, though most students wind up taking the course. Professional responsibility or legal ethics is required, and certainly one of the issues the articles raises is whether the lawyers discussed in the article behaved ethically. One thing to note here: DC law, and the uniform law on which it is based, requires the lawyer to represent the supposedly incapacitated person's interests zealously. That is, the lawyer should not do what he or she thinks is the best for the client, but rather what the client asks him or her to do--as would be the case with any client.

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Des Moines, Wash.: It is heartbreaking- the poor, mentally ill and the old are the ones who need greater protection if not equal protection than the rich and healthy But it seems that our current justice system steam rolls over them. From the stories, I read it seems that some of us are predators of the weak.

How can we ensure that our justice system will not become an extension of the wishes of predators?

How can lawyers do, what has been written about in the Washington Post, without fear of sanctions?

Robert Dinerstein: One way to assure that the legal system is fair--especially toward those who are the most powerless--is for people to examine what goes on in the courts in their communities. Exposes such as these two articles are an important start, but cannot be the last word. Another issue in cases like these: sometimes we are least attentive in those cases where we think something good is being done for someone, and yet it is exactly in these cases that we have to be especially vigilant. Guardianship and conservatorship are meant to be "protective" proceedings--and apart from the fact that we all should be outraged by what the articles uncovered, we also have to be skeptical about government when it purports to act in our interest.

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Charlotte, N.C.: My Mother recently passed. while she was in the hospital, my sister, without my Mother's permission somehow got the court to approve a Power of Attorney. My sister added her name to all of my Mother's bank accounts and put my Mom's car in her name. She the opened an account in her own name and had two of the accounts transfered to the account with her name only. My Mother passed and my sister then requested the last and larger account to be tranfered to her name - this is after we got the will which doesn't have her name on it.

Is the bank responsible for allow those accounts to transfer to my sister, while my Mother was alive?

Robert Dinerstein: Like the issues discussed in the article, this is a matter of your state's law. One issue would be whether your mother knew what she was doing when she signed the power of attorney. In most states--though I can't speak to North Carolina--the power of attorney also must be witnesses by one or more disinterested parties. So if the witnesses knew what was going on, they may bear some responsibility. As for the bank, it may turn on whether the bank or its officers knew or should have known that the power of attorney might not be legitimate. I can't give you legal advice--but you might want to contact a lawyer to discuss this with him or her.

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Reston, Va.: The post staff writers have done a fine job here in alerting the community to a potentially very serious problem for us all.
While we hope that it never happens to us it can! One questioner has nothing but the highest praise for the attorney Gazzola. In the article Gazzola is accused of taking control. How does one protect himself against a bad court appointed attorney? Should that happen is their an appeal processes?

Robert Dinerstein: This question, and several others, speak to the issue of what do when attorneys go bad. Every state, and the District of Columbia, have offices to which you can complain about a lawyer's actions. In D.C., there is a Board of Professional Responsibility which sits in panels to hear complaints brought by Bar Counsel after receiving complaints from citizens. The disciplinary system can sometimes take awhile to work--you saw that in one of the sidebar articles in the series--but if you or anyone ever has a concern about an attorney, complaining to the bar is a first step.

The second thing I'd say is that it is important when dealing with professionals--not just lawyers but doctors and others--to remember that these people work for you--either because you are paying them or because the court has appointed them to represent you. That appointment or retainer places certain duties on the lawyer, including to exercise fiduciary responsbility, to represent the client zealously, and to keep the client's confidences and secrets, among other things. Don't be afraid to press your lawyer on what specifically he or she is doing for you. You wouldn't accept slipshod service from others with whom you interact--tradespeople, mechanics, government functionaries--and you shouldn't accept that from professionals either. Remember, though, that sometimes it is not possible for a lawyer to obtain the relief you seek. So not every failure to achieve a client's goals is the fault of the lawyer.

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Wheaton, Md.: It seems that under existing D.C. law an inherent conflict of interest exists when an attorney with a clear financial interest in managing the affairs of his client is able to petition the court for guardianship. Does the court appoint independent counsel to represent the interests of the alleged disabled person in such a situation? Does the the alleged disabled person have a right to a jury trial (as in Maryland)? Finally, why should an attorney who is essentially a party in interest be able to charge more than twice as much as court appointed attorneys?

Robert Dinerstein: Under DC law, each person for whom guardianship or conservatorship is sought is entitled to an attorney, and as I said in a previous answer, that attorney by law is required to advocate for his or her client zealously. Also by law, there is in DC, as in most states, a preferred order for guardians/conservators: a person suggested by the allegedly incapacitated person; the spouse; adult child; parent of the incapacitated person; any relative; and, lastly, any other person. (There are some variations in the language in the actual statute.) I agree with you that it seems problematic for one with a financial interest to petition for guardianship--while there may be times when it is appropriate (say an adult child who becomes guardian for an ailing parent and who also may inherit under the will or otherwise benefit), a reviewing court must assure itself that there is not such a conflict of interest (or even the appearance of one) that would call into question the guardian's loyalty to the ward/protected person.

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Silver Spring, Md.: Even beyond the scruples of the average lawyer or judge-- doctors are just too quick to conclude permanent incompetence. This was the case of my father in Ohio. If I hadn't demanded a second opinion from a neurologist, he'd still be in an assisted living facility.

When he had his stroke, he was unable to communicate the names of his next of kin. The hospital was within hours of declaring him incompetant and taking guardianship when I contacted them. I found out about my father's condition through a series of coincidental events. The hospital took no action to search me out.

By the way-- everyone should register their will. Although the place where one should do it varies from state to state. Very confusing.

Robert Dinerstein: I am glad you brought this out. It goes back to what I said at the beginning. Having a guardian appointed (especially a total or plenary guardian) is a major denial of one's civil rights, and can affect one's right to vote, make health care decisions, decide where to love, make a contract, etc. Because we value autonomy in this country, we should never find "incompetency" or "need for guardianship" easily--and that is true even if the person in question has a mental illness or cognitive limitation such as mental retardation or Alzheimer's disease. Anytime a health-care facility says across the board that everyone needs to have a guardian we should be suspicious. Remember too that people are entitled in our country to make all kinds of choices, even ones that their families might think of as foolish (or that a lawyer or doctor might think so) but foolishness is not a grounds for guardianship--otherwise we'd all probably be under guardianship!

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Different Washington, D.C. Lawyer - Error Alert!: You're not quite right about the attorney's duties as a guardian. In a normal client relationship, the client is competent, so the attorney merely advises and acts within the rules. In a guardianship, the client isn't competent, and the terms of the guardianship order require the lawyer to exercise judgment which can and does overrule the client's wishes. Example: the client is incompetent and confined for mental health reasons and wants out. The guardian may -not- without court OK seek to accomplish this. A non-guardian lawyer may. The roles of guardian-lawyer versus regular-lawyer are totally different.

Robert Dinerstein: Well, I don't exactly agree. The guardian, if properly appointed, does stand in the shoes of the person, and can, with some important limitations, agree to do (or not to do) anything the person could have done. Even so, a guardian, even if it is a lawyer, could not agree to a client's sterilization nor "consent to the involuntary or voluntary civil commitment of an incapacitated individual who is alleged to be mentally ill and dangerous. . . except that a guardian may function as a petitioner for the commitment [under the Metnally Retarded Citizens Act of 1978]." DC Code 21-2047(c)(4).

Also, Model Rule of Professional Conduct 1.14 urges the lawyer to have as "normal" a lawyer-client relationship with an incapacitated person as possible. At a minimum, this requires the lawyer to consult with his or her incapacitated client, especially on issues as sensitive as treatment and its location.

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Washington, D.C.: One reason individuals name an Attorney in Fact is to avoid a guardianship proceeding in the event of their incapacity. (A Durable Power survives the maker's incapacity.) Are there cases where a Guardianship is necessary/appropriate even though someone has signed a Durable Power?

Also, perhaps you could address the difference between having the capacity to handle one's business and personal affairs and having the competence to make a Will.

Robert Dinerstein: A durable power of attorney, if it describes the range of decisions that the person is ceding to the attorney, should often be able to function in lieu of a guardianship. It is not a panacea, though, because (a) one has to be competent to execute a power of attorney in the first place (so it wouldn't help someone with profoud mental retardation, for example) and (b) if the power of attorney is too circumscribed it may not authorize a later decision that needs to be made (assuming that the principal later loses capacity and can't simply amend the power of attorney). In any case, it's good to discuss this and other alternatives (representative payee, advanced health care directive, etc.) with an attorney before opting for one or the other.


The capacity question is tricky, in that what most of the experts tell us is that capacity is not only a fluid concept but it can be very subject to context. I might be terrible at handling money, and consequently need a conservator, but be perfectly able to meet my health care needs (and hence not need a guardian, or what some states call a guardian of the person). So, whatever the specific context--the making of a will, the entering into of a contract, the decision to permit a medical procedure--one wants to look at the person's functional ability--that is, his or her ability to do that specific task rather than some globalized determination of competency.

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Washington, D.C.: Mr. Dinerstein,
I missed the on-line discussion but I do have a question, we are in the same situtation with a loved-one being placed under Judge Christin a court-appointed attorny, my father had a substantial amount of money to this day he is almost penniless, in the beginning we tried to get Judge Christin to appoint our mother, to no avail, my mother lives at the home her and my father shared for almost 40 years, my has a power-of-attorney already in place we are trying to add another family member name to the lease, can this be done, we was told my the court-appointed lawyer that it could not be done, what procedures would we need to take to get this underway, your quick respond would be most helpful, Thank-you

Robert Dinerstein: I am not sure I have all the facts here--there are some key words missing in your question--but the law does provide that there is a preferred order for guardians and spouses and adult children are favored--though the court does not have to appoint them. Also, the DC statute (21-2049) clearly states that the ward (that is, your father) "or any person interested in the ward's welfare" can petition the court for removal of a guardian. That doesn't mean the court has to listen, and your lawyer may believe that the chances of removal of the guardian are not great, but it is at least possible to raise the question. As for the lease question, it would depend on what the power of attorney wanted to do--he or she might have the power to decide not to add a new name to the lease if the power of attorney document gave him broad enough power to do so.

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Oakton, Va.: Many of the problems we face in this area today can be traced to the late 1970's when, during the Carter Administration, mental institutions were forced to free many paitients who did not want to stay there, even if these people could not comprehend what they were getting into on the outside after they WERE freed. Unfortunately, this policy was politically motivated, and has turned out in many ways to have been a disaster.

Robert Dinerstein: This would take a whole additional hour to respond to. It is interesting, though, that you blame this problem (implicitly anyway) on the Carter administration. In fact, when he was governor in California, Ronald Reagan was one of the major proponents of deinsitutionalization. The reality is that deinsitutionalization has had a number of different waves, starting with the introduction of psychotropic drugs in the mid-1950's, a big push in the late 1960's, and later waves in the 1970's and 1980's. In my view, the problem is not with deinstitutionalization in principle, nor would we want to return to the days of abusive, harmful, isolated large state institutions. Rather, the problem was that too many states and localities tried to do deinstitutionalization on the cheap, without the needed community supports that would facilitate a meaningful and safe life in the community.

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Robert Dinerstein: Well, I need to get off now. Thank you for your questions and for participating in the discussion.

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