Late last month, the Supreme Court of Texas agreed that an attorney who represented a client in a previous estate planning matter could also represent that person’s niece in an application for guardianship. The Court so ruled because it believed the attorney to be acting in the best interest of the ward.
In this instance, the proposed ward’s niece filed an application for guardianship over her aunt. The niece hired the attorney who represented the aunt previously. It is worth noting that, in that estate planning matter, the niece was designated to inherit her aunt’s property. She was also her aunt’s designated agent under a Power of Attorney.
During a hearing on the issue, the aunt’s attorney moved to disqualify the niece’s attorney from handling the guardianship application because he had previously represented the aunt. The applicant’s attorney acknowledged that he represented the aunt, but that in bringing the application for guardianship, was acting in her best interest. The court refused to disqualify counsel, and its decision was upheld by the state Supreme Court.
Texas Rules of Professional Responsibility require that an attorney take steps to secure protection for a client with diminished capacity or a lack thereof. The niece’s attorney argued that he did just that. But, even if an attorney reasonably believes he or she must protect an incapacitated client, the attorney must still abide by the conflict of interest rules. In most instances, those rules are designed to prevent an attorney from using a client’s confidential information to his or her detriment if the attorney represents the other side in a matter.
In the estate planning realm, the court ruled that there were no confidences shared, as the will and Power of Attorney drafted for the aunt were public documents. Because the niece had already been named as the aunt’s agent under her Power of Attorney, the court ruled that the attorney’s representation was not adverse to the aunt, and that the institution of a guardianship was in the aunt’s best interest.
Texas has over 51,000 open guardianships, which represents an increase of 8% from 2014. With the number of seniors in Texas growing exponentially as baby boomers continue to reach retirement age, issues regarding guardianships – their application, administration, and protection of the ward – will continue to require monitoring by the courts.