Conservatorship C.G. v. McEachern

• Citation: 463 P.3d 487
• Decision Date: 29 October 2019
• Docket Number: NO. A-1-CA-35613,A-1-CA-35613
• Parties: In the MATTER OF the GUARDIANSHIP and Conservatorship OF C.G., Robert Richards, Appellant, v. Michael McEachern, Appellee.
• Court: Court of Appeals of New Mexico

463 P.3d 487

In the MATTER OF the GUARDIANSHIP and Conservatorship OF C.G.,Robert Richards, Appellant,

v.Michael McEachern, Appellee.

NO. A-1-CA-35613

Court of Appeals of New Mexico.

Filing Date: October 29, 2019

Robert Richards, Santa Fe, NM, Pro Se Appellant

Hurley Toevs Styles Hamblin & Panter PA, Gregory W. MacKenzie, Lalita Devarakonda, Albuquerque, NM, for Appellee

Disability Rights New Mexico, Alice Liu Cook, Jason C. Gordon, Albuquerque, NM, for Amicus Curiae Disability Rights New Mexico

OPINION

VANZI, Judge.

{1} Attorney Robert Richards appeals from the district court's order striking his entry of appearance "as counsel of record for [C.G.]," an adult under a guardianship and conservatorship ordered by the court pursuant to Article 5 of the New Mexico Uniform Probate Code (UPC), "Protection of Persons Under Disability and Their Property," NMSA 1978, §§ 45-5-101 to -436 (1975, as amended through 2019¹ ) (Article 5). We reverse.

BACKGROUND

{2} The substantive question presented arose in circumstances that court-appointed professionals in the case described as "difficult" and "complicated," with concerns expressed about C.G.’s relationships with family members and their involvement in decisions within the authority of C.G.’s court-appointed guardian and conservator; differences between what family members believed C.G. needed and what C.G. said she wanted, which the guardian believed should be supported; and issues in the relationship between C.G.’s guardian and conservator. Inconsistencies in the terms of the order and documents implementing the guardianship and conservatorship interposed confusion, and other circumstances precipitated delays and litigation concerning various issues. While the record sheds light on the context in which this appeal arises, we are mindful of the sequestered nature of the proceedings below and that the sole substantive question before us is whether the district court erred in striking Richards’ entry of appearance as counsel for C.G. on the grounds stated in its order.

A. Appointment of Guardian and Conservator

{3} In June 2014 C.G.’s daughter (Daughter)² filed a petition in the district court asking to be appointed as guardian and conservator for her mother. Acting in accordance with statutory procedures stated in Article 5, the court entered orders appointing a qualified healthcare professional (QHCP),³ a visitor,⁴ and a guardian ad litem (GAL),⁵ and scheduling an evidentiary hearing to determine whether C.G. was incapacitated.⁶ See NMSA 1978, § 45-5-303 (2009, amended 2019) (stating guardianship procedures); NMSA 1978, § 45-5-407 (1998, amended 2019) (stating conservatorship procedures); § 45-5-102(D) ("When both guardianship and protective proceedings⁷ as to the same person are commenced or pending in the same court, the proceedings may be consolidated."). The court also granted Daughter's emergency ex parte motion, in which she asked to be appointed as temporary guardian and temporary conservator. See § 45-5-310 (governing appointment of temporary guardian); § 45-5-408 (governing appointment of temporary conservator).

{4} On September 30, 2014, after holding a hearing, the court entered an "Order Appointing Temporary Guardian and Conservator" (2014 Order), in which the court concluded, among other things, that C.G. "is incapacitated and appointment of a guardian and conservator is necessary"; the guardian and conservator "should each be appointed to serve with independent and several authority"; and C.G. had the right to appeal the appointments within thirty days "and to seek alteration or termination of the guardianship and/or conservatorship at any time." The 2014 Order's decretal paragraphs "ordered, adjudged and decreed"⁸ the following (among other things): (1) C.G. is "declared an incapacitated person"; (2) an independent guardian (identified by name) is appointed as "plenary guardian of [C.G.]" (Guardian); (3) C.G.’s son-in-law (also identified by name) is appointed as "conservator of the estate⁹ of [C.G.]" (Conservator); (4) "Letters of Guardianship and Conservatorship shall issue upon acceptance of this appointment"; and (5) the duties of the GAL appointed at the commencement of the proceedings "are terminated upon entry of this order." See § 45-5-304 (describing inquiries and findings to be made in appointing guardians); § 45-5-407(G)-(P) (same in appointing conservators); § 45-5-303.1(B) (stating that, "[u]nless otherwise ordered by the court," GAL duties "terminate and the [GAL] is discharged from" those duties "upon entry of the order appointing the guardian and acceptance of the appointment by the guardian"); § 45-5-404.1(B) (same in conservatorship proceedings).

{5} The 2014 Order and "Letters and Acceptance" of guardianship and conservatorship stated no limitations on the powers of Guardian and Conservator but authorized Guardian to exercise all powers granted to guardians, and authorized Conservator to exercise all powers granted to conservators, in Article 5. See § 45-5-308(C) (stating, inter alia, that guardianship letters shall contain "the scope of the guardianship including the specific legal limitations imposed by the court on the powers of the guardian"); § 45-5-421.1(C) (same concerning conservatorship letters); NMSA 1978, § 45-5-312 (2009, amended 2019) (stating powers of guardians); §§ 45-5-424, -425 (stating powers of conservators).

{6} As to the guardianship, the 2014 Order determined that "guardianship is appropriate as the least restrictive form of intervention consistent with the preservation of the civil rights and liberties of [C.G.]"; appointed Guardian as "plenary guardian of [C.G.]"; and described Guardian's authority broadly as the "authority to act on behalf of [C.G.,] which includes but is not limited to" several enumerated powers and rights of access to information. The letters also described Guardian's broad "authority to act on behalf of [C.G.,]" and stated that Guardian "shall have full legal authority over [C.G.]"; "may exercise all powers granted to guardians in [Article 5]"; and "is appointed solely as guardian and not as conservator."

{7} As to the conservatorship, the 2014 Order described the scope of Conservator's authority as over C.G.’s estate, determining that "[t]here are no available alternative resources that enable the effective management of property and financial affairs for [C.G.] and the conservatorship is appropriate as the least restrictive form of intervention consistent with the preservation of her property." The letters stated that Conservator "shall have full legal authority over [the] estate of [C.G.]"; "may exercise all powers granted to conservators in [Article 5]"; and "shall serve solely as conservator of [C.G.’s] estate and shall not be her guardian."

{8} The 2014 Order and guardianship letters contain inconsistencies. As noted, the 2014 Order's decretal paragraphs ordered that "[t]he guardianship and conservatorship are in place until further order of the court." But the title described the appointments as "Temporary Guardian and Conservator," and one (non-decretal) sentence within stated that, "[i]n the event that [C.G.] is able to return to living independently without the need for placement in a residential facility, [Guardian] shall be relieved of her duties as guardian." The letters also stated, "In the event that [C.G.] returns to living independently outside a residential placement, [Guardian's] appointment as her guardian shall terminate."

B. Subsequent Events and Proceedings

{9} C.G. lived in an assisted-living facility from the commencement of the guardianship/conservatorship until April 10, 2015, when she moved back to her home. On or about December 11, 2015, Guardian filed a letter addressed to the district court stating that she was "asking for [the] guardianship to be revoked at this time"; explaining that she "had assumed that [the] guardianship only lasted until [C.G.] moved out of [the assisted-living facility]"; and that she was "requesting a hearing to reconsider [C.G.]’s need for guardianship." See NMSA 1978, § 45-5-307(C) (2009, amended 2019) (allowing a "petition for an order that the incapacitated person is no longer incapacitated and for removal or resignation of the guardian ... by informal letter to the court or judge"). The letter also stated that C.G.’s "family is asking that one of them take the place of her guardianship" but that Guardian believed "a more objective guardian would be the best option."

{10} The record includes statements indicating that Guardian understood from the appointment documents that the guardianship terminated automatically when C.G. moved from the assisted-living facility back home, but that Guardian continued with guardianship duties in August 2015 after she learned that her understanding was incorrect and she needed to file a motion if she believed the guardianship should be revoked.

{11} In a later report to the court (filed February 9, 2016), Guardian confirmed that she served as C.G.’s guardian "from September 20, 2014 to [the] present time except for the period of time from April 10, 2015 to August 24, 2015[.]" This report also stated that C.G. had met and conferred with Richards at a legal fair that took place during the period when Guardian believed the guardianship was no longer in effect. In addition, this report described, among other things, Guardian's problems dealing with Conservator and C.G.’s daughters.

{12} In response to Guardian's letter request, the district court scheduled a motion hearing and status conference for January 21, 2016. See § 45-5-307(D), (F) (providing, inter alia, that "[u]nless waived by the court upon the filing of a petition to terminate a guardianship for reasons other than the death of the incapacitated person, the court shall follow the same procedures to safeguard the rights of the incapacitated person as those that apply to a petition for appointment of a guardian as set forth in Section 45-5-303" and "shall...