Estate of Milstein v. Ayers, 97CA1150

• Decision Date: 05 February 1998
• Docket Number: No. 97CA1150,97CA1150
• Citation: 955 P.2d 78
• Parties: 98 CJ C.A.R. 604 In the Matter of the ESTATE OF Letty MILSTEIN, an incapacitated person, and John Milstein, an Interested Person, Appellants, v. Patricia AYERS, Guardian-Appellee. . V
• Court: Colorado Court of Appeals

Page 78

955 P.2d 78

98 CJ C.A.R. 604

In the Matter of the ESTATE OF Letty MILSTEIN, an incapacitated person,

and

John Milstein, an Interested Person, Appellants, v. Patricia AYERS, Guardian-Appellee.

No. 97CA1150.

Colorado Court of Appeals,

Div. V.

Feb. 5, 1998.

Petrie, Bauer & Vriesman, LLP, Andrew J. Petrie, Cris D. Campbell, Denver, for Appellant Letty Milstein.

Walter H. Sargent, P.C., Walter H. Sargent, Colorado Springs, for Appellant John Milstein.

Bernard A. Poskus, P.C., Bernard A. Poskus, Darla L. Shaffer, Denver, for Guardian-Appellee Patricia Ayers.

Opinion by Judge ROTHENBERG.

In this involuntary guardianship proceeding, Letty Milstein, an allegedly incapacitated person (AIP), and John Milstein, an interested person and the AIP's son (son), appeal the comprehensive protective order entered by the probate court. We reverse and remand for a new hearing.

In April 1996, the AIP's daughter filed an involuntary petition to have a guardian and conservator appointed for the AIP. Appearing through counsel, the AIP contested the petition, but the court issued orders appointing a temporary and limited guardian and a temporary and limited conservator for the AIP.

In January 1997, the probate court issued an order that dismissed the AIP's attorney from the case and appointed a guardian ad litem (GAL) "in lieu of legal counsel."

A permanent orders hearing to resolve the issue of the AIP's incapacity was set for June 3, 1997. Several weeks before the permanent orders hearing, two attorneys claiming they had been retained by the AIP attempted to enter their appearance as her new counsel. However, shortly before the permanent orders hearing, the probate court issued several orders in which it found the AIP incompetent and lacking legal capacity to engage counsel. It therefore excluded both the AIP and her purported counsel from appearing at the permanent orders hearing. The court's orders were based largely upon an interview of the AIP conducted at the AIP's home by the probate judge on her own motion.

After the permanent orders hearing, the probate court entered an order finding the AIP incapacitated and it appointed a permanent guardian and conservator in addition to the guardian ad litem.

I.

Son's Appeal

The AIP's son contends that the probate court erred in excluding the AIP from the permanent orders hearing and in denying her the right to counsel. We agree with both contentions.

A. Standing

As a threshold matter, we address and reject the guardian's contention that the son lacks standing to raise these issues.

Because a guardianship proceeding involves a potential deprivation of fundamental rights and liberties, it implicates constitutional issues. See Sabrosky v. Denver Department of Social Services, 781 P.2d 106 (Colo.App.1989). Accordingly, we conclude that the concept of third party standing, as it has been applied in other cases involving alleged deprivations of constitutional rights, applies to these circumstances. Cf. State Board for Community Colleges v. Olson, 687 P.2d 429 (Colo.1984) (third-party standing available in action alleging violation of constitutional rights).

To have standing to assert the right of a third party not before the court, the party before the court must demonstrate an injury to himself or herself sufficient to guarantee concrete adverseness. People v. Rosburg, 805 P.2d 432 (Colo.1991). In addition, at least one of the following factors must be present: (1) a substantial relationship between the party before the court and the third party; (2) the difficulty or improbability that the person who has suffered deprivation of his or her rights will be able to assert it; or (3) the need to avoid dilution of the third party's rights in the event standing is not permitted. Augustin v. Barnes, 626 P.2d 625 (Colo.1981).

Here, the son has suffered injury in fact to himself because the probate court's order significantly abridged his ability to have contact with his mother. Further, under the Colorado Probate Code, § 15-10-101, et seq., C.R.S. 1997, the son is an interested person. See § 15-10-201(27), C.R.S.1997. As such, the Probate Code also provides him with other statutory rights to participate in the court's proceedings. See § 15-14-304(4), C.R.S. 1997 (an interested person may move to limit powers of guardian); § 15-14-307(1), C.R.S. 1997 (an interested person may petition to remove guardian); and § 15-14-307(2), C.R.S. 1997 (an interested person may petition for adjudication that ward no longer is incapacitated). Thus, the son has met the first requirement for standing.

We further conclude the son has satisfied all of the three alternative factors required for standing.

The relationship of mother and son is sufficiently substantial to meet the first of the three alternative factors. Nor can we overlook the fact that, although the AIP is a named party who normally would be able to assert her own rights, both the guardian and GAL have moved to dismiss her appeal for lack of standing, claiming that she lacks the capacity to retain her own counsel to pursue this appeal on her behalf, and that only the guardian or GAL may represent her interests. These challenges to the AIP's standing severely impair her ability to assert for herself the alleged deprivation of her rights, therefore satisfying the second alternative factor. If standing is not conferred upon the son and the AIP were denied standing to bring this appeal, the alleged deprivation of the AIP's rights would go unexamined, thus satisfying the third alternative factor.

Accordingly, we conclude that the son has standing to raise on appeal the alleged deprivation of the AIP's rights in the probate court.

B. AIP's Right to Attend Hearing

On May 27, 1997, the probate court on its own motion and without prior notice issued an order excluding the AIP from attending the permanent orders hearing, apparently based upon its own assessment of her condition. The order stated that: "On Friday, May 23, 1997, the Court met with [the AIP] in her home and took her statement in lieu of testimony." The interview by the probate court was conducted in the presence of a court reporter, the guardian ad litem, and a medical expert, but without prior notice to all interested parties including the AIP's adult children. Hence, it was ex parte.

Section 15-14-303(4), C.R.S.1997, of the Probate Code provides, in pertinent part that The person alleged to be incapacitated is entitled to be present at any court proceeding in person and to see or hear all evidence bearing upon his condition. He is entitled to be present by counsel, to present evidence, [and] to cross-examine witnesses, including ... any court-appointed physician .... (emphasis added)

Thus, the statute unequivocally entitles the AIP to attend in person any court proceedings bearing upon her condition. To construe the statute as providing anything less would implicate constitutional concerns because a potential deprivation of fundamental rights and liberties is involved. Cf. Sabrosky v. Denver Department of Social Services, supra (because finding of incapacity deprives person of basic liberties and raises constitutional concerns, standard of proof of incapacity must be by clear and convincing evidence).

Contrary to the guardian's contention, the statute does not leave the AIP's right to attend her competency hearing to the probate court's discretion. It unambiguously entitles the AIP to attend. Cf. In re A.W., 637 P.2d 366 (Colo.1981) (absent statutory direction, question of non-consensual sterilization of retarded minor is within discretion of district court). Nor have we been directed to authority suggesting that the taking of a pre-hearing statement "in lieu of testimony," assuming the taking of such a statement is otherwise proper, bars the AIP from personally attending other court proceedings bearing upon her condition.

We thus conclude that the AIP was entitled to attend the permanent orders hearing and that the probate court erred in ruling otherwise. Because the AIP was excluded, the matter must be remanded for a new hearing.

In view of our conclusion that the AIP's statutory right to attend the permanent orders hearing was violated, we need not consider whether her state and federal constitutional rights also were violated.

C. AIP's Right to Retain Counsel

The son next contends the probate court erred in refusing to allow the AIP to have her own counsel at the permanent orders hearing. We conclude she was entitled to have private counsel at all stages of the proceedings, including those determining the amount of fees and costs, if any, that should have been paid from her estate.

As noted above, § 15-14-303(4) states that a person alleged to be incapacitated "is entitled to be present by counsel." A necessary inference from this express right is that the AIP has the right to retain counsel. See also § 15-14-303(5), C.R.S. 1997 (authorizing court to appoint counsel for allegedly incapacitated person).

Nevertheless, the guardian asserts four arguments why the probate court here was justified in denying counsel to the AIP. We reject each in turn.

1.

The guardian maintains that because a GAL was appointed for the AIP "in lieu of legal counsel," she was not denied legal representation. We disagree.

It is undisputed that, at the outset of these proceedings in April 1996, the AIP was represented by her own counsel. However, when her physical and mental condition deteriorated in January 1997, her counsel filed a petition entitled "Protected Person's Counsel's Petition for Guidance," expressing concern regarding the AIP's ability to participate meaningfully in her representation. Her attorney requested guidance from the probate court regarding his continuing role in representing the AIP, especially as to fee matters then pending. He advised the court that there were several matters pending before it including the AIP's objections to the financial plan. The AIP...