Clint Bolick

Court protects the defenseless

Posted on January 13, 2011 | Author: Clint Bolick
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Judges receive lots of criticism, which is deserved when they stray beyond their constitutional boundaries. But at the same time, the protection of our rights depends on principled and aggressive judicial action.

A recent decision by the Arizona Court of Appeals illustrates this important role, in the context of some of the most vulnerable members of society: Individuals unable to handle their own affairs who often become prey to unscrupulous guardians and lawyers.

For several years, Arizona Republic columnist Laurie Roberts has chronicled the abuses of a system that leaves many incapacitated persons destitute, as lawyers and court-appointed guardians rack up huge fees that often are rubber-stamped by probate courts.

In the case of In re Guardianship of Sleeth, a court-approved guardian and various lawyers burned through about one-third of the ward’s assets (nearly half a million dollars) in 18 months, much of it spent on litigation. The fees were approved by the probate court without scrutiny.

The Court of Appeals overturned the payouts and established rules to prevent future abuses. As fiduciaries, those entrusted with representing the interests of a ward must demonstrate that they “do not waste funds or engage in excessive or unproductive activities,” according to the ruling. They also “must avoid the pursuit of pyrrhic victories that accomplish little but to bankrupt the protected person.”

All of us face the possibility that some day we will not be able to manage our own affairs; and many will experience the plight of loved ones in similar circumstances. As the Court of Appeals observed, “judges play a vital role in fulfilling the legislature’s intent to safeguard those in need of the protection of conservators or guardians.” Thanks to this principled ruling, probate courts in the future will be less hospitable to those who place their own interests above those to whom they owe a sacred legal duty.

Clint Bolick is director of the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.

Learn More:

Arizona Court of Appeals: In re Guardianship of Sleeth

Arizona Republic: Today’s probate story is brought to you by Mary

Arizona Republic: Probate Court: A Troubled System

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