In re Thetford

• Decision Date: 24 May 2019
• Docket Number: No. 17-0634,17-0634
• Citation: 574 S.W.3d 362
• Parties: IN RE Verna Francis Coley THETFORD, Relator
• Court: Texas Supreme Court

574 S.W.3d 362

IN RE Verna Francis Coley THETFORD, Relator

No. 17-0634

Supreme Court of Texas.

Argued October 10, 2018

Opinion delivered: May 24, 2019

Donald E. Herrmann, David E. Keltner, Joseph "Joe" R. Greenhill, III, Kelly Hart & Hallman LLP, Fort Worth TX, Alfred G. ‘Rusty’ Allen III, Turner & Allen, P.C., Graham TX, for Real Party in Interest Ciera Bank of Graham, Texas and Jamie Kay Rogers.

Mary H. Barkley, Joshua V. Michaels, Robert E. Aldrich Jr., Stephen J. Huschka, Cantey Hanger LLP, Fort Worth TX, for Relator.

Don D. Ford III, Ford & Bergner LLP, Houston TX, for Amicus Curiae Ford + Bergner LLP.

Toby L. Reddell, Graham TX, Pro Se.

Chief Justice Hecht delivered the opinion of the Court as to Parts I, II, III-A, and IV, in which Justice Green, Justice Guzman, Justice Lehrmann, and Justice Boyd joined, and a concurring opinion as to Part III-B, in which Justice Green and Justice Guzman joined.

A guardianship is a court-sanctioned infringement of an incapacitated person's right to control her own property, liberty, and life in order "to promote and protect [her] well-being".¹ A guardian can provide essential care for the ward. But tragically, wards are also vulnerable to neglect, abuse, and exploitation.² There are more than 51,000 open guardianships in Texas,³ 8% more than there were five years ago.⁴ And the number is growing, as the number of Texans over age 65 is expected to double by 2030, to six million.⁵ Guardianship proceedings must ensure the appointment of guardians who will promote and protect the well-being of the incapacitated elderly and the disabled.

Guardianship proceedings present difficult ethical issues for lawyers. Generally, a lawyer must act in a client's best interests, but guardianship cases can be emotionally charged. A ward's best interests may be hotly disputed and, because of her incapacity, difficult to discern. The issue before us is whether the Texas Disciplinary Rules of Professional Conduct⁶ require that a lawyer be disqualified from representing one client who is applying to be appointed guardian for another current or former client, without that client's consent. We hold that the rules permit the representation in limited circumstances and that a trial court's decision regarding disqualification, based on a careful, thorough consideration of all the evidence, is entitled to great deference by an appellate court. We conclude that the trial court in this case did not abuse its discretion by refusing to disqualify counsel for the guardianship applicant. Accordingly, we deny mandamus relief.

I⁷

Jamie Rogers was born in Graham, Texas (pop. 8,903), the county seat of Young County (pop. 18,550), located about 90 miles west–northwest of Fort Worth. All her life, her uncle and aunt, L.D. and Verna Thetford, also lived in Graham, and at all times material to this case, she and her husband, Larry, lived about a mile from the Thetfords. Verna once taught school but for many years was the bookkeeper for the cow–calf operation she and L.D. ran on five pastures totaling about 1,000 acres in Young and neighboring Jack Counties. As the Thetfords grew older, they relied on Jamie and Larry for support.

In March 2012, the Thetfords loaned the Rogerses $ 350,000 at 4% interest—more than the Thetfords were making on the funds at the bank—to purchase land that had belonged to Jamie's great-grandparents, Verna's grandparents. Alfred G. "Rusty" Allen, III, a lawyer practicing in Graham, represented the Thetfords in preparing the five-year note and the deed of trust. Jamie had worked for Allen's law firm as a legal assistant beginning when she was a senior in high school, though she was not working for the firm at the time of the loan. Allen was named trustee under the deed of trust.

In July 2015, Verna, then 84, executed a will and power of attorney, prepared by Allen. In the will, Verna left her estate to Jamie if she survived Verna, and if not, to Verna's heirs. The power of attorney designated Jamie as Verna's attorney-in-fact and her preferred guardian if the need arose and authorized Jamie to make healthcare decisions for Verna if she were unable to do so herself, "including the choice of nursing home facilities". Jamie was not working for Allen's firm at the time. A month later, L.D., then 92 and suffering from dementia

, moved from his and Verna's home to Brookdale Graham, an assisted living center.

In 2016, Verna's mental state began to deteriorate. She verbally abused L.D. and his caregivers and interfered with their giving him his medications. Jamie and Larry assisted Verna in gathering her mail, running errands, and banking, but Verna often forgot what she had asked Jamie to do and accused Jamie of mismanaging her affairs. In December 2016, Verna was briefly admitted to the hospital twice, then transferred to Brookdale.

Though Verna's driver's license had been revoked, she continued to insist on driving. In February 2017, she convinced one of her caregivers to take her from Brookdale to her home, where she retrieved the keys to a pickup and drove to the feed store for supplies for her cattle. On the way home, she struck a trailer pulled by another vehicle and left the scene, at first denying what she had done and admitting to it only later. The trailer was minimally damaged, and no charges were filed. But the incident prompted Jamie to disable Verna's vehicles and to monitor her more closely at Brookdale. Verna accused Jamie of stealing the pickup.

The Rogerses' note to the Thetfords came due on March 15, with a $ 285,000 balloon payment still being owed. Believing that L.D. lacked the capacity to agree to extend the note and concerned that Verna was in the same position, the Rogerses began efforts to refinance the note with a local bank but were still awaiting completion of an appraisal of the property when the note came due. Verna claimed that she asked Allen to write the Rogerses a demand letter but that he refused. Allen denies that Verna made the request. At the time, Jamie was working again for Allen's law firm. Verna asked a friend to drive her to the office of another Graham attorney, Stephen Crawford, who prepared a revocation of her power of attorney, which Verna executed in Crawford's office on March 27. Verna expressed to Crawford her desire to foreclose the deed of trust lien securing the Rogerses' note, and Crawford explained foreclosure would need to be initiated by Allen, the trustee, or Verna would need to appoint a successor trustee. Verna did not ask Crawford to write the Rogerses a demand letter.

Two weeks later, on April 10, Jamie, represented by Allen, filed an application for temporary guardianship of Verna's person and a management trust for her estate. Attached to the application was a physician's certificate of medical examination from Verna's personal physician, Dr. Pete Brown; his office notes from his examination of her on March 29; and his affidavit. Brown wrote in his office notes that Verna "presents with change in mental status" that "was noted several months ago. The course has been progressively worsening. It is of severe intensity." In his affidavit, Brown averred:

2. I am a licensed medical doctor, authorized to practice medicine in the State of Texas and have been since 1980.

3. Verna Francis Coley Thetford has been a patient of mine since 2006, and I have seen her regularly and frequently since that time.

4. I last examined Mrs. Thetford on March 29, 2017, at which time I determined that she:

(A) Is legally blind;

(B) Is suffering from moderate dementia

that is increasing in severity;

(C) Has deficits in short-term memory, immediate recall, recognizing familiar objects and persons, solving problems, reasoning logically, and grasping aspects of her situation;

(D) Lacks the ability to initiate and make business, managerial, and financial decisions;

(E) Lacks the ability to make, modify, rescind or revoke contracts;

(F) Lacks the ability to manage a personal bank account or her personal finances;

(G) Lacks the ability [to] safely operate a motor vehicle;

(H) Lacks the ability to make decisions regarding marriage;

(I) Lacks the ability to determine her own residence; and

(J) Makes poor decisions, has poor insight and judgment, and often acts irrationally.

5. Based on my examination of Mrs. Thetford on March 29, 2017, I determined that Mrs. Thetford was, and is, incapacitated as that term is defined by Section 1002.017 of the Texas Estates Code, which states that an "Incapacitated Person" is an adult who, because of a physical or mental condition, is substantially unable to: (a) provide food, clothing, or shelter for himself or herself; (b) care for the person's own physical health; or (c) manage the person's own financial affairs. It is my professional opinion, based upon my knowledge of and involvement with Mrs. Thetford, that she has become an "Incapacitated Person" over the past several months.

The physician's certificate added that Verna's prognosis was "poor [and] increasing in severity" with no possibility of improvement, and that "no limitations [should be] placed on guardian's powers. Proposed ward needs assistance managing her affairs."

Brown's office notes stated that "Verna is here for a mental status exam, she is alone and states that she does not need help and never has. Her niece Jamie was suppose[d] to be her[e] but Verna has ‘Revoked’ her." His affidavit added:

6. I did not see Mrs. Thetford on March 27, 2017, the date on which she purportedly executed a document revoking a Statutory Durable Universal and Health Care Power of Attorney and Designation of Guardian Before Need Arises, and Directive to Physicians, executed on July 22, 2015, that she had previously executed appointing Jamie Kay Rogers as her agent and attorney in fact, medical power of attorney and guardian before need arises. However, Mrs. Thetford's dementia and diminished capacity has been ongoing and increasing in severity, especially during the past few months. Based upon my knowledge of and

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