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In re Guardianship and Conservatorship of C.G.

Court of Appeals of New Mexico

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


          Linda M. 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 2019[1]) (Article 5). We reverse.


         {¶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 proceedings[7] as to the same person are commenced or pending in the same court, the proceedings may be consolidated."). The court also granted Daughter's i 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 estate[9] 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 the 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 hold a status hearing ... to determine the appropriate order to be entered").

         {¶13} Attorneys representing Daughter filed an entry of appearance on January 14, 2016 and, on January 19, 2016, filed an emergency petition to remove Guardian; appoint a family member identified by name in the petition as temporary, successor guardian; continue the conservatorship; and re-evaluate C.G.'s capacity. The petition recites complaints about Guardian's performance of her duties, including her alleged failure to respond to Conservator's request that she prepare a budget and her "unilateral" decisions to move C.G. home and cease performing her guardianship duties without obtaining another cognitive evaluation and without seeking court guidance.[10] Richards also filed an entry of appearance "as counsel of record for [C.G.]" on January 14, 2016. A letter executed on January 19, 2016, by Guardian "[i]n her capacity as Guardian for [C.G.J" states that the letter "formalize[s] the agreement" whereby Guardian hired Richards "to assist [C.G.] with her guardianship, or even if she is under a guardianship, under [Guardian's] authority to hire [Richards, ] pursuant to [Section] 45-5-312."

         {¶14} Richards appeared on behalf of C.G. at the January 21, 2016 hearing, with C.G., Guardian, Daughter, and Daughter's counsel in attendance and Conservator participating by telephone. Richards stated that he was there to present C.G.'s "preferences"; was concerned that C.G. might need representation if there were another hearing, and asked to be appointed as GAL. Guardian explained that she was confused by the guardianship letters and understood that she was no longer C.G.'s guardian after C.G. moved home. The court asked Guardian if she had "been acting . . . and recently serving" as C.G.'s guardian, and Guardian confirmed that she was. The court acknowledged that the word "temporary" appeared in the title of its 2014 Order and that "there is some contradiction in the letters that were issued," but noted the decretal language in the 2014 Order and stated, "I find the status quo is that there is a guardianship in place."

         {¶15} The district court found at the hearing that C.G. continued to need a guardian and conservator pending an evidentiary hearing to be scheduled. Among other rulings (later memorialized in a written order), the court (1) granted Daughter's emergency petition to continue the conservatorship and to re-evaluate C.G.'s capacity; (2) denied Guardian's motion for revocation of the guardianship and Daughter's emergency petition to remove Guardian and appoint a temporary successor guardian; (3) ordered that Guardian would continue to serve pending an evidentiary hearing to re-evaluate C.G.'s capacity and the necessary level of guardianship and conservatorship; and (4) ordered the appointment of a visitor, GAL, and QHCP to provide recommendations at that hearing. At the end of the hearing, the court stated, in response to a question from Daughter, "If you believe [the guardian is acting] totally outside her role, that's why you have your attorney, and we'll be back here."

         {¶16} In re-appointing the GAL who had served in the 2014 proceedings, the court stated at the hearing that the GAL had previously "[p]rovided a full and complete report to the court" and that she "is independent of all parties and will provide the court with an honest opinion as to what is appropriate in the best interests of the protected party." When Richards asked the court to clarify "[his] role now in this proceeding," the court responded, "That's sort of interesting. I'm not really sure.... But I appointed a guardian[11] who typically will be reporting to me not so much as her attorney but as an arm of the court as to what... he or she believes is in the best interests of . . . the protected person and at the same time I'm not sure she can or would advocate for [C.G.]'s position." When Richards asked whether he should send his fee bill to Conservator, the court responded, "I'm not so sure. I think that's an issue I have to resolve. I think the best way to approach that may be for you to file a motion and ask the court to rule on that." Guardian also asked that Richards be paid.

         {¶17} The record before us does not include this motion, and it does not appear on the docket as having been filed. The record does, however, include a January 27, 2016 "Response in Opposition to Motion to Allow Payment of Attorney Fees and for Reconsideration of Appointment of [GAL]" filed by Daughter's attorneys, which asserts (among other things) that Richards could not "fulfill the role of a [GAL] expressed by the [c]ourt at the January 21st hearing ... to investigate the circumstances and provide the [c]ourt with information as a third-party objective professional" and that the fees for which Richards sought payment "were incurred without any legal authority at a time when [C.G.] was legally incapacitated and under the protection of a [c]ourt-appointed conservator." Citing Sections 45-5-17[12] and 45-5-424, the response argued that Conservator "has the exclusive authority to enter contracts on behalf of the incapacitated person, including contracts to retain lawyers and other advisors to protect the protected person's interests" and that, "[i]n direct defiance of the [UPC], neither [Guardian] nor . .. Richards contacted [Conservator] to discuss the reasons for . . . Richards' retention, . . . Richards' hourly rate, his expected fees, or the services he intended to provide for [C.G.]." In a January 29, 2016 reply, Richards cited "[G]uardian's right to hire or approve the hiring of an attorney under [Section] 45-5-312(B)" and argued that C.G. "needs someone to present her preferences to the [c]ourt and be heard" and that Section 45-5-424(C) "only gives . . . Conservator the authority to pay bills out of or collect funds for the protected person's estate."

         {¶18} The court's February 9, 2016 written order, concerning the matters discussed at the January 21, 2016 hearing, did not address the issues raised in Richards' post-hearing motion and Daughter's response. In addition to reciting the rulings noted above, including that Guardian and Conservator "shall remain" in their roles "until further order of the Court," the order directed Guardian and Conservator "to communicate directly with each other . . . and work together to provide for the best interests of [C.G.]" and directed Conservator to "approve reasonable requests of the Guardian for expenditures on behalf of [C.G.]" and "to approve or deny such requests within [twenty-four] hours."

         {¶19} On March 2, 2016, following the death of the GAL in late February 2016, the court issued an order appointing a successor GAL (not Richards, although he had reiterated his prior request to be appointed in that role), ordering that the GAL "serves as an arm of the court and assists the court in discharging its duty to adjudicate the best interests of [C.G.]" and "shall perform each of the duties as set forth in Sections 45-5-303.1 and 45-5-404.1[.]" The same day, the court issued an order setting a hearing to re-evaluate C.G.'s capacity and further ordering that a hearing "to determine the fees, if any, to be awarded to . . . Richards ... for his services in representing [C.G.]" should be deferred and would be set "following the final resolution of the now existing mental capacity of [C.G.] and her need, if any, for a Guardian and/or Conservator."

         {¶20} On March 14, 2016, attorneys representing Conservator entered an appearance. A week later-two months after the January hearing at which Richards first appeared and argued for C.G. and six weeks after entry of the court's order concerning that hearing-Conservator's attorneys filed an emergency motion to strike Richards' entry of appearance, which Daughter joined, in which Conservator characterized the decision to hire Richards as "the latest in a series of questionable judgments by [G]uardian"; described "[G]uardian's actions" as the basis for Daughter's January 19, 2016 emergency petition to remove Guardian; and asserted that "neither [C.G.] nor [G]uardian has the capacity to contract with . . . Richards" and that Richards "is in direct conflict of interest to [C.G.] by seeking the payment of attorney fees from her estate." Citing Sections 45-5-402.1(B)(3)(d), -312, and -312(B)(4)(c), Conservator argued that "only . . . [C]onservator can enter into contracts on [C.G.'s] behalf; "[w]ithout a specific finding that a guardian may contract on behalf of a ward, the guardian cannot enter into contracts on behalf of the incapacitated person"; Conservator did not consent to Richards' retention and Richards did not seek pre-approval from the court; the 2014 Order "does not grant [G]uardian any financial powers over [C.G.]'s estate"; and "[t]here is no provision in the [UPC] giving a guardian the power to contract a lawyer on behalf of the ward when a conservator is in place." While stating that he did "not wish to impede [C.G.'s] ability to have legal representation," Conservator contended that "counsel should be accountable to the [c]ourt[, ]" and "[t]herefore, [C.G.]'s legal representation should occur through a [GAL], and not through private counsel whom [C.G.] lacks the capacity to direct."

         {¶21} In opposing the motion to strike, Richards contended that the district court was aware he was representing C.G. pursuant to his contract with Guardian; Section 45-5-303(C) "allows [G]uardian to hire an attorney for [C.G.]"; and that Conservator must pay him "[u]nless the hiring was unreasonable, something never alleged[.]" Richards also argued that Section 45-5-402.1 describes powers of the district court, not conservators, and that the 2014 Order did not give Conservator sole authority to contract; Section 45-5-424 provides "the conservator's authority to hire an attorney for himself but not for C.G., while Section 45-5-312(B) authorized Guardian to hire an attorney for C.G., and the district court's February 9, 2016 order "also gave [G]uardian authority to contract and it is [C]onservator's duty to 'approve reasonable requests of . .. Guardian for expenditures on behalf of [C.G.].'" Richards argued further that Conservator had "allowed the attorney fees to accumulate over several months without following the requirements of the February 9, 2016 Order or filing any objection of any nature with the [c]ourt until now" and that the costs to C.G.'s estate "have grown exponentially" because of Daughter's conduct and filings.

         {¶22} On April 29, 2016, the GAL stated in an interim report that the fees for which Richards sought payment "have resulted from litigation almost exclusively focused upon [Richards'] status as counsel and payment of his attorney fees, which litigation has culminated in the [m]otion to [s]trike now before the court[, ]" and expressed concerns about the impact on C.G. and her estate. Guardian filed a response on May 2, 2016, stating that the court proceedings were very stressful for C.G. and that she believed Richards' advocacy had helped C.G. to deal with that stress, noting that C.G. would not otherwise have had an attorney to represent her wishes at the January 21, 2016 hearing, and that Guardian believed C.G. needed an attorney.

         {¶23} On May 5, 2016, after holding a hearing on May 3, 2016, the district court issued a letter decision granting the motion to strike Richards' entry of appearance and entered an order on May 9, 2016, finding and ruling, in relevant part, as follows:

2. The Entry of Appearance of . . . Richards was filed five days prior to the signing by [Guardian] ... of the Letter of Engagement which served as the contract between [C.G. and Guardian] and . . . Richards for the provision of legal representation for [C.G.] in this matter.
4. At the time . .. Richards was retained as counsel for [C.G.], she was not legally capable of entering into such a relationship or business arrangement with ... Richards as [C.G.] had been found by this [c]ourt to be an incapacitated person who was incapable of making such a decision and for whom the [c]ourt appointed a guardian and conservator[]
5. At the time of the retention of... Richards as counsel for [C.G.], the legal status of [C.G.] had not changed and could not be changed without further order of the [c]ourt.
6. At the time that... Guardian ... signed the Letter of Engagement ostensibly hiring . . . Richards as attorney for [C.G.] in this matter, she did not have the authority to hire an attorney for [C.G.]. [See Gardner v. Gholson (In re Gardner)], 1992-NMCA-122, ¶ 23[, 114 N.M. 793, 845 P.2d 1247]; [see also] NMSA 1978, §§ 45-1-201(A)(21) [(2011)] (definition of guardian), 45-5-312 (powers of guardian).
7. At the time of the retention of... Richards as counsel for [C.G.], the only individual who had the authority to retain an attorney for [C.G.] was and is the [c]ourt-appointed [C]onservator. [See In re] Gardner, 1992-NMCA-122, ¶ 23; NMSA 1978, §§ 45-5-101(A) [(2011, amended 2019)] (definition of conservator), 45-5-424 (powers of conservator).
8. [Section] 45-5-402.1 does not limit or otherwise deprive a conservator of any of the powers granted to a conservator[] pursuant to [Section] 45-5-424; it merely grants the [c]ourt the power to act for the incapacitated person on its own or through the conservator.
9. ... Conservator did not ratify nor otherwise approve the contract between . . . Guardian[] and . . . Richards.
10. Rather, . . . Conservator, through his spouse, informed . . . Richards that he should not act as attorney for [C.G.] until the contract was approved by . . . ...

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