Serving as Guardian of Mentally Incompetent Ward

December 1, 2008

CJE Opinion No. 2008-10     

You have asked the Committee for an opinion on the propriety of your continued service as guardian to a mentally incompetent ward, and whether this situation is encompassed in the "close familial relationship" provided in Section 4E of the Code of Judicial Conduct. You have provided us with the following facts. The Probate and Family Court appointed you to be the guardian of the ward in February 1978, and you have served in that capacity for the last 30 years. The ward is now in her mid-fifties. She is a client of the Department of Mental Retardation (DMR). She has some mental health issues as well as cognitive limitations. The ward lives and works in facilities maintained by a DMR licensed agency. The agency is her representative payee, you have never been responsible for her money or her financial issues.

At the time of your appointment, you were chosen by the Court as a disinterested professional because the ward's parents were not suitable. You had no prior involvement with the ward or her family. The ward's parents have since died; she has one brother who is in sporadic and occasional contact with her.

Your role has been to execute necessary legal and medical consents. You review treatment plans proposed by DMR and the agency. From 1995 - 1997 you were appointed by the Court to monitor administration of anti-psychotic medication to the ward, at which time she had appointed counsel to represent her in the Rogers hearings. She has not received anti-psychotic medication for the last decade.

You do not have a close personal relationship with the ward. You do not know how the ward perceives you, other than that a DMR representative reported that she regards you as a trusted authority figure. Your perception of the relationship is distant and professional. You rarely visit, only on an as needed basis. Your interaction is primarily with the personnel at the group home where the ward resides, the agency, or DMR.

After your appointment to the bench, a DMR supervisor suggested that it would be beneficial to the ward, and all involved, if you continued to serve as her guardian. When questioned recently, the local DMR supervisor opined that there would be short term negative consequences for the ward if you ceased to be her guardian, but that in the long run the ward would be able to handle the change.

As noted earlier, Section 4E of the Code permits a judge to serve in a fiduciary capacity to "[a] person with whom the judge maintains a close familial relationship." The relevant question here is whether your relationship with the decedent was "a close familial relationship," as that term is used in the Code. In the Committee's view, it is not.

The Committee dealt with similar issues in CJE Opinions 08-9,97-3, 00-2 and 03-3. In each of those opinions, the Committee recognized that the question of "close familial relationship" was inherently fact driven and susceptible to no single overarching test or criterion. Accordingly, we followed the lead of the Court of Judicial Discipline of Pennsylvania in the case of In re Horgos, 682 A.2d 447, 451-452 (Pa. Ct. Jud. Disc. 1996) which distinguished mere friendship from a close familial relationship by considering eight factors: "(1) intimacy of address, (2) recognition by others of a close relationship, (3) shared meals, (4) frequent contact either by phone or in-person, (5) shared holidays, (6) shared family events, (7) assistance with physical, medical, legal or emotional needs, and (8) longevity [of the relationship]." The Committee noted, however, that the presence of fewer than all of the factors would suffice where "the essence of the relationship [was] nurturing." See also Indiana Commission of Judicial Qualifications Advisory Opinion #5-89.

Consideration of those criteria leads the Committee to conclude that your relationship with the ward does not qualify as a close familial relationship. Although the ward has no other active familial relationships, you do provide some assistance with medical and legal needs, and it has been a long relationship, the lack of the other factors tips the balance into the non-familial category. There is no relationship by blood; you do not share an address; there is no recognition by others that you have a close relationship and you do not perceive the relationship as close yourself; you do not provide any "direct" assistance with physical, medical or emotional needs; you do not share meals, holidays or family events; and you are not in frequent contact.

While it may be possible that a long-standing guardianship relationship can create a close familial relationship that would justify continuing as a guardian after becoming a judge, this is not that circumstance.

Section 4E of the Code does not permit you to continue as the ward's guardian. You should take reasonable steps to resign in a timely and expeditious manner.