QUESTIONS FOR JUDGE BARKEY
QUESTION AND ANSWER SESSION MARCH 3, 2011
- 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.
- 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.
- 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.
- 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.
- 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?
- 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.
- 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.
- 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.