QUESTIONS FOR JUDGE BARKEY

 

QUESTION AND ANSWER SESSION MARCH 3, 2011

 

  1. Do you agree with Judge Mack’s position that the standard for ordering mental health treatment should be changed?  As I understand his position, a probate judge should be able to order mental health treatment if the individual is unable to make informed decisions regarding treatment – similar to the standard required to appoint a guardian.  Please comment.

ANSWER:  Yes.  The standard needs to be changed.  I recently wrote a letter to the editor stating that very idea. 

  1. I have heard Toni Cerny from Adult Protective and Assessment Services indicate to parties that she “represents” Probate Court when performing a guardianship review.  Is this appropriate?  It seems to create a false impression that she is a Court employee, or somehow creating Court policy.

ANSWER: Toni Cerny is acting as an agent of the court when performing a guardianship review.  In a sense, she is representing the court.

  1. Fact scenario: A Doctor’s statement has been Ordered by the Court, or requested by the alleged incapacitated individual in guardianship/conservatorship proceedings.  The report is in the Court file.  Can the attorney representing the alleged ward object to its admissibility based on HIPPA concerns?  Please comment.

ANSWER:  An attorney can always object.  However, the doctor’s statement are kept in a confidential envelope in the file.  Courts are not subject to HIPPA laws so without other information I would probably overrule the objection. 

  1. Are Toni Cerny’s recommendations in her guardianship review mandatory to follow, which will result in removal of the fiduciary?  If so, do those mandates exceed guardianship review authority?

ANSWER: Tony Cerny’s recommendations are not mandatory.  The Order Following Review of Guardianship will detail what is mandatory. 

  1. If a petition to appoint a guardian or conservator, or a successor, is granted, can the attorney fees incurred by the petitioner be paid from the ward’s estate?

ANSWER:  Yes. 

  1. When an attorney is the appointed guardian or a conservator what is a reasonable fee for non-attorney services such as arranging for the sale of property, paying bills. Etc.  Are there any guidelines on what the attorney can charge?

ANSWER:  The attorney may not charge his or her hourly attorney fee rate.  The attorney needs to charge a reduced rate for fiduciary services.  All fees are subject to the approval of the Court, and the Court has not issued any guidelines because there are a variety of factors to consider when allowing a fee. 

  1. What is a reasonable GAL fee when an attorney is appointed as GAL and the estate is ordered to pay, where the GAL makes one visit to the ward, a few phone calls, and writes a 1-2 page report?  Are there any guidelines on what the attorney can charge?

ANSWER:  The rule for a long time has been a $70 fee if it is a county pay and $125 if it is an estate pay.   

  1. Is Dr. Weiss still refusing to testify by telephone?  What if all parties agree to telephone testimony?

ANSWER:  Yes.  It is his choice and as far as I know he is still refusing to testify by telephone even if all parties agree to telephone testimony.