The Self-interested Fiduciary: Implications in Guardianship and Conservatorship Law
| Publication year | 1995 |
| Pages | 2181 |
1995, September, Pg. 2181. The Self-Interested Fiduciary: Implications in Guardianship and Conservatorship Law
The Oxford English Dictionary(fn1) defines the role of guardian as a defender and protector. Using the metaphor "guardian angel" to describe the role, this fiduciary is one who selflessly and caringly(fn2) watches over another.(fn3)
Under both common law and statute, a guardian is one who acts for another in a fiduciary capacity.(fn4) Special confidence is reposed in this protector, and in this office, good faith, loyalty and absolute fidelity(fn5) to the interests of the one cared for(fn6) are required.(fn7) Out of the guardian-ward relationship, the fiduciary cannot take self-interested advantage; the ward cannot lawfully be prejudiced because of the appointment.(fn8)
This article examines the meaning of fiduciary duty in the context of the guardianship of persons and their property. It affirms that both guardians and conservators must be other than self-interested, and that courts either presume or find that such neutrality accompanies the fiduciary office. Conflicts of interest of petitioners requesting letters of fiduciary authority over others who are believed to be incapacitated and in need of protection jeopardize the protective purpose of the fiduciary appointment. Case law that considers common conflict situations is also examined in this article.
Petitioners requesting courts to appoint them as guardians for others believed to be incapacitated or accepting such appointments under the Uniform Probate Code ("Code") and Colorado's statutory equivalent must be persons "interested in the welfare" of the disabled parties.(fn9) Neither the Code nor Colorado's statute defines the meaning of the standard "interested in the welfare of."(fn10) The meaning reasonably attributed to this phrase must be found in the purpose(fn11) of guardianship itself and in case law.
In a recent Colorado case, In re Estate of Edwards, the Court of Appeals suggested that the terms "interested person" and "interested in the welfare of" are similar phrases.(fn12) The former is defined by the Code and Colorado's statute.(fn13) The "similar phrase" in the context of guardianship includes as interested persons ". . . creditors . . . and any others having a property right in or a claim against [the] . . . ward or protected person [who] may be affected by the proceeding. . . ."(fn14)
Thus, under Edwards, self-interest in the petitioner appears sanctioned where property is involved in which the petitioner claims an interest under the Code's conservatorship statute.(fn15) However, in this author's opinion, a petitioner's self-interest seems stridently inappropriate, contrary to the language(fn16) and antagonistic to the purpose fundamental in modern guardianship law.(fn17) If the statute defining "interested party" is interpreted to sanction the self-interest of a petitioner who requests appointment as a fiduciary over another's property, it is similarly inappropriate. Self-interest is intrinsically violative of the protective duty owed to the ward by his or her fiduciary, whether such person is a guardian of the estate or of the person.
The court in Edwards relied on the Code's definition of interested person only to affirm a creditor's right to petition for the appointment of a guardian for another.(fn18) It held that a claim by a petitioner against the party believed to be incapacitated does not, as a matter of law, disqualify such petitioner from being interested in the welfare of another. The satisfaction of that standard in guardianship cases can be established only by an evidentiary hearing, which the court, in Edwards, ordered.(fn19)
Edwards does not suggest that the petitioning creditor requested appointment of himself as guardian. The court wrote that the claimant
filed a verified petition requesting findings of Edwards' incapacity, for appointment of a guardian ad litem ["GAL"], for protective orders relating to the [existing] conservatorship, and for permission to participate in the proceeding.(fn20)
However, a self-serving claim that is adverse to an incapacitated person's interests should result in disqualification of a claimant/petitioner who does seek a
An interest in obtaining a substantial judgment against an incapacitated person is adverse to such person's welfare and...
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