Opinion 95-3

April 7, 1995

Opinion 95-3

Dear:

          This letter is in response to your letter of March 9, 1995 seeking advice from the Committee. You have asked whether it would violate the Code of Professional Responsibility for Clerks of Court for you to take over some of the affairs of a long time friend with no living relatives. The friend's ability to conduct her financial and personal affairs and care for herself has been deteriorating. You state that there are attorneys who would provide the necessary legal services to accomplish the provision for care and supervision needed. You would want to share responsibility for financial matters with another. You would anticipate making decisions for this person concerning health care and personal maintenance, possibly including the choice of a nursing home.

          Canon 5(D) of the Code prohibits a Clerk-Magistrate from serving as "an executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of a member of his or her family." A family member is further defined as including a "spouse, child, grandchild, parent, or other relative or person with whom the Clerk-Magistrate maintains or maintained a close familial relationship." The making of financial decisions and other choices about health care, personal maintenance and future residential care on behalf of another would place you, in the Committee's opinion, in a fiduciary relationship bearing the characteristics of a guardian or holder of a power of attorney. Although you have maintained a long friendship with this person, who once worked within the Court, that relationship is not familial in nature as that term is defined by the Canons. Therefore, it is the Committee's opinion that you may not, consistent with Canon 5(D), undertake the duties you propose.