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Recognizing that a loved one needs a guardian can be a trying time. Taking steps to help the situation is painful and often destructive to the family unit. Not everyone agrees on next steps or who should take control. Sometimes, a medical diagnosis suggests cognitive impairment. Other times, one’s conduct indicates that she requires intervention. The standard for the appointment of a guardian or a conservator varies from state to state. Generally, one is appointed as a guardian when the individual’s functional limitations are so great that she is likely to suffer harm.
A personal guardian makes medical decisions. The guardian may decide treatment plans, choice of residence, and doctors. A financial guardian marshals assets, pays liabilities, budgets, applies for benefits, and can commences lawsuits in order to recoup monies which are owed to the individual. Often guardianships are born out of financial scams wherein individuals are taken advantage of and made to give or loan their money away.
Not every guardianship involves a grandmother with dementia or a bed-ridden senior citizen. For example, despite the fact that pop star Britney Spears has a conservatorship, she has continued to work, earn money, and raise her children. Often guardianships are tailored to allow the individual as much freedom as is safe in her particular instance. Guardianships and conservatorships apply to those with mental, emotional, and physical diagnoses when individuals exhibit behaviors that may cause harm to themselves. Sometimes people do not even have an official diagnosis.
As with Britney Spears, a guardianship proceeding may be commenced while someone is still working and participating in the community. Justice Laura Carter Higley is a 72-year-old judge in the First Court of Appeals in Houston, Texas. As she sits on the bench, her two adult sons have commenced a guardianship proceeding on her behalf in Harris County Probate Court 2. She was recently diagnosed with Alzheimer’s disease and they have alleged her failing cognitive health.
Her sons argue that since November 2017, the justice has suffered from neurocognitive issues. Justice Higley, who first took the bench in 2002, drives herself to work daily in Houston. She has been involved in cases since March 2019, although no one has appealed her decisions since her diagnosis.
As in many guardianships, there exists a fight for control as the judge has an $8 million estate. Her husband, Bob Higley, is the mayor of West University Place, Texas, and he resides there with his wife. The sons are concerned about financial exploitation. Mayor Higley serves as the justice’s agent under a financial and medical power of attorney since March 2019. The sons also question their father’s actions with regard to the judge’s personal safety.
Complaints and concerns about Justice Higley could be made to the State Commission on Judicial Conduct, although it will not reveal if any have been filed as a result of their rules on privacy. The sons allege that their father has encouraged Justice Higley not to resign from her position. According to the Texas Constitution, a judge can be removed from office in the event a disability interferes with her duties, which is or is likely to become permanent.
In many state jurisdictions, there is mandatory retirement for judges at a certain age. Such a rule often prematurely removes productive judges from the bench. Some of these judges then seek employment in the private sector. Justice Judith Kaye, the first woman to serve as the New York chief justice of the Court of Appeals, retired at age 70, due to the New York mandatory retirement statute. She then joined Skadden, Arps, Slate, Meagher & Flom as of counsel. Supreme Court and federal judges have lifetime appointments and many of these jurists have demonstrated monumental decisions during their “golden years.”
The case of Justice Higley highlights the fact that every guardianship matter is different. Individuals have different impairments, some of which can be hidden in the course of day-to-day activities. Some individuals may require assistance yet present well. Conversely, others may appear disheveled or in despair, but have a clear grasp on their lives. As practitioners and judges, we must look at the details and background of each case and make certain that the outcome specifically fits the facts. As is the concern with judicial mandatory retirement, not everyone ages the same way.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.