Schieber v. Schieber

JOSEPH M. ELLIS, Judge,

Concurring.

I concur in the majority opinion. I write separately, however, to emphasize that notwithstanding Mrs. Schieber’s previous adjudication as totally incapacitated and totally disabled, she still can seek, select, and be represented by otherwise qualified private counsel.

Section 475.075.34 provides that upon the filing of a petition for a guardian or conservator, “the court shall immediately appoint an attorney to represent the respondent in the proceeding.” (Emphasis added). Typically, counsel represents the alleged incapacitated or disabled person through the hearing on the petition and the entry of judgment, including appeal, if any, i.e., “the proceeding.” Once a judgment of incapacity or disability and the appointment of a guardian and conservator has been entered, the incapacitated or disabled person’s appointed counsel’s duties are completed and the attorney’s representation ends. At that point, the guardian or conservator will likely still be represented by an attorney, but generally the ward or protectee individually will not be represented by counsel.

The Guardianship Code contains safeguards for those who have been declared incapacitated or disabled because the legislature realized that such persons lose their freedom to a great extent. For example, the guardian makes all the decisions as to where the ward resides, what care he or she receives, what the ward can and cannot do, etc. While recognizing the necessity for such circumstances, the legislature was also mindful that the conditions resulting in incapacity or disability can change, that an incapacitated or disabled person can improve. Consequently, the Guardianship chapter of the Probate Code includes procedures for restoration. Specifically, Section 475.083.4, RSMo Cum. Supp.2008, provides, in pertinent part:

At any time the guardian, conservator or any person on behalf of the ward or protectee may, individually or jointly •with the ward or protectee, or the ward or protectee individually may petition the court to restore the ward or protec-tee, or to decrease the powers of the guardian or conservator, except that if the court determines that the petition is frivolous, the court may summarily dismiss the petition without hearing.

(Emphasis added).

Section 475.083.6, RSMo Cum. Supp. 2008, further prescribes:

Upon the filing of a petition without the joinder of the guardian or conservator, the court shall cause the petition to be set for hearing with notice to the guardian or conservator. If the ivard or pro-tectee is not represented by an attorney, the court shall appoint an attorney to *136represent the ward or protectee in such proceeding. The burden of proof by a preponderance of the evidence shall be upon the petitioner. Such a petition may not be filed more than once every one hundred eighty days.

(Emphasis added).

By providing that a ward or protectee individually may petition the court for restoration, and providing that “if” the ward or protectee is unrepresented by counsel, an attorney is to be appointed, the legislature implicitly, if not expressly, acknowledged that a ward or protectee may seek out counsel of his or her choosing to assist in seeking restoration. And not infrequently, that is precisely what happens. The ward or protectee individually, or a friend or relative of the ward or protectee, contacts an attorney requesting assistance in securing restoration. The attorney meets with them, looks at the records, conducts an investigation, perhaps discusses the matter with the guardian or conservator, evaluates the issues, and ultimately decides whether to take the case. The ward or protectee has every right to seek legal representation and assistance, and the attorney has every right to consult with the ward or protectee and undertake representation.

The confusion arises as to whether a totally incapacitated and disabled person can hire an attorney, that is, commit to pay the attorney for his or her services. Section 475.078.2 provides, in pertinent part, that “[a]n adjudication of incapacity or disability does operate to impose upon the ward or protectee all legal disabilities provided by law....” Similarly, § 475.078.3 declares that “[a] person who has been adjudicated incapacitated or disabled or both shall be presumed to be incompetent.” Thus, a totally incapacitated or disabled person lacks capacity to enter into a binding contract to expend his or her funds to pay for legal services.

But, as noted supra, this does not preclude the ward or protectee from requesting representation by private counsel, nor does it prevent an attorney from undertaking such representation. A lawyer may take the case on a pro bono basis. Or, it is not uncommon for friends or relatives to agree to pay for such services. If not, the lawyer may have no guarantee of payment for his or her services from the ward or protectee. Under those circumstances, payment of the lawyer’s fees may be dependent upon the outcome of the case. If successful in restoring the ward or protec-tee, there would be nothing to prevent the ward or protectee from paying the lawyer. Or, if partially successful, for example by securing placement of the ward or protec-tee in a less restrictive environment, or a partial restoration of capacity, the court might order payment of fees from the ward or protectee’s assets because the lawyer’s services provided a valuable service to the guardianship estate. There may be any number of other possibilities.

In any event, I concur in the primary opinion because private counsel in this case, Mr. Petry, is disqualified from representing Mrs. Schieber because of a conflict of interest. Additionally, the trial court’s ruling, which is affirmed by the primary opinion, was that Mrs. Schieber “did not have the capacity to hire private counsel.” Maj. Op. at 132 (Emphasis added). I would agree that she did not have capacity to hire private counsel, as in agreeing to pay for counsel’s services. However, as explained herein, Mrs. Schieber, even though totally incapacitated and totally disabled, is not precluded from seeking and securing legal representation to assist her in restorative efforts.

PFEIFFER, J., concurs.

. All statutory references are to RSMo 2000 unless otherwise noted.