Guardians Ad Litem—part 2: Serving Adults With Diminished Capacity in Domestic Relations Matters
| Publication year | 2022 |
| Pages | 40 |
August, 2022
BY ANN GUSHURST
This two-part article explores the role of guardians ad litem in domestic relations proceedings and offers guidance on working with clients who may need a guardian ad litem appointed for them. This part 2 discusses practical considerations in such representation.
This is the second in a series of two articles discussing the use of a guardian ad litem (GAL) in domestic relations cases. Part 1 dealt with the GAL's history and role. This part 2 discusses practical considerations attorneys face when representing clients with diminished capacity.
Assessing Incapacity
The Colorado Rules of Professional Conduct advise that "in taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections."[1]
When a client has apparent capacity issues, the attorney must determine whether the client is unable to protect himself or herself or is making what the attorney considers to be bad decisions, which clients are generally entitled to make.[2] For example, the attorney must discern whether the client is agreeing to waive maintenance because she is a domestic violence victim or because she sees some logic in the bargain.[3]
Attorneys should investigate capacity issues when a client
■ cannot make a decision or continually reverses course,
■ refuses to communicate with the attorney,
■ has conversations with the attorney that make no sense,
■ attends meetings intoxicated,
■ is incoherent,
■ cannot remember conversations or decisions,
■ is inconsolable around certain topics,
■ seems to dissociate in the face of certain decisions or situations, or
■ acts consistently against the client's best interests.
Attorneys are first required to tell clients about their concerns[4] and should begin the discussion by asking clients whether they are depressed, suffering from anxiety, or using drugs or alcohol in ways that impair them. Dementia can be much more difficult to assess, but attorneys can directly address the issues they observe without labeling the problem. For example, the attorney might say, "You said this on Tuesday, but Wednesday you did not seem to remember saying this, and Thursday you said the opposite to me."
Attorney-client conversations should be limited to facts and avoid the attorney's judgments or feelings about the facts. Because judgments are likely to primarily trigger a defensive response, attorneys should avoid telling a client his or her decision is bad. Rather, attorneys should explain how the client's decision-making will render the desired outcome unlikely. It is key that attorneys document all conversations with detailed notes that establish common facts and send those notes to the client. Paralegals and other staff who regularly interact with clients should similarly document their interactions.
The best approach to resolving a capacity issue is to work with the client to find solutions. Attorneys can and should explain their duty in this regard by focusing on compassion; this will assure clients that the inquiries are motivated by zealous and connected advocacy rather than judgment. Counsel can ask for permission to speak to the client's physician or trusted relatives and friends. Attorneys can also suggest solutions t o the client that are appropriate to the situation, such as working with a therapist for issues that appear to be related to depression or anxiety. If a client chooses to seek therapeutic care, the attorney should consider asking for a release that allows the attorney to participate in the dialogue with the professional. And attorneys should remain aware that even if the client does not agree to a release, no rule prevents attorneys from sharing their concerns with professionals as long as they maintain the balance between keeping confidences and protecting the client as outlined in the professional conduct rules. If these solutions don't work, appointment of a GAL or other advocate may be warranted.[5]
Choosing a Fiduciary versus a GAL
The Colorado Probate Code provides for appointments of a conservator, under CRS § 15-14-425.5, and a guardian, under CRS § 15-14-315.5. Both are fiduciaries who may petition the court for authority to file and maintain a dissolution action. Two points are relevant when considering such appointments versus a GAL appointment.
First, most guardians and conservators are appointed on the basis of clear and convincing evidence, but CRS § 15-14-401(b)(II) has an exception to allow appointment of a conservator on a preponderance of the evidence if "protection is necessary or desirable" and "the individual has property that will be wasted or dissipated" without such an appointment.
Second, in conservatorships or guardianships where a ward is either incapable of consenting or does not consent to the filing of a petition for dissolution, the court must make a finding that the action is in the ward's best interests "based on evidence of abandonment, abuse, exploitation, or other compelling circumstances."[6] If a client's impairment supports the appointment of a guardian or conservator on a clear and convincing basis, or jeopardizes their financial situation sufficiently to support appointment of a conservator on a preponderance of the evidence, an appointed guardian or conservator can file or maintain an action for the solution.
However, a fiduciary appointment is only made when warranted, and many clients who are struggling during a divorce maybe struggling because of the divorce.[7]
Liability Issues
Few experiences are as anxiety-producing as dealing with a client with a diminished capacity that deleteriously impacts their lawsuit. Colo. RPC 1.14, cmt. 8 notes that "the lawyer's position in such cases is an unavoidably difficult one," especially given an attorney's dual roles to protect both the client's interests and confidences, which creates a bind when disclosure of diminished capacity would or could compromise the client.
When considering a GAL or other fiduciary appointment, an attorney must first address whether the client has needs beyond the current litigation warranting more permanent and comprehensive help. A client who cannot make any competent decisions at all will likely need a guardian or conservator; one who has difficulty communicating, problems that come and go, or problems making decisions around one or more discrete issues in a specific litigated matter is likely best served by a GAL.[8]
Presumably, a client will offer less resistance to a GAL appointment, which is limited to the pending litigation, than to the prospect of a permanent or long-term fiduciary. However, as illustrated by In re Marriage of Sorensen, discussed in detail in part 1, a client may be very resistant to a GAL appointment. In such cases, presenting evidence of diminished capacity in pursuit of an appointment may violate attorney-client privilege[9] or prejudice the client's interests. For example, such evidence could be used against a client in making an allocation of parental responsibilities. And even when parenting is not an issue, courts have found a constitutionally protected liberty interest in both "avoiding the stigma of being found in competent" and "in retaining personal control over the litigation."[10]
Colo. RPC 1.14(b) notes that "in appropriate cases" an attorney may have to seek the appointment of a "guardian ad litem, conservator or guardian." Comment 7 further explains that "appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require." Thus, though the rules address how an attorney should protect...
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