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News & Press: Montana Lawyer

Guardianship for special-needs kids offers excellent opportunity for pro bono service

Wednesday, November 1, 2017   (0 Comments)
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By Thomas J. Lynaugh and Larry E. Riley


Montana Rules of Professional Conduct Rule 6.1 recommends that lawyers render at least 50 hours of pro bono service each year. However, there exist realities that can make it hard to do: concern about how to schedule pro bono work with an already busy schedule and finding pro bono work you can do. We have participated in an excellent option that allows you to do important and rewarding work, but also allows you to be in control of that work and the schedule. That work is doing guardianships for families with special-needs children.

From the pro bono work we have done in this area, we have learned of the extensive need in Montana to assist these families in becoming guardians as those children turn 18. Without being their guardians the parents run the risk of not having the necessary legal authority to make important decisions after age 18.

The applicable law, necessary legal documents and procedure involved are brief and easy to understand. You can control the timing of the work that is done. And, in almost all of the cases, it is not necessary for you to go to court to conclude the guardianship. Finally, it is a misnomer to say that you do not “get paid” – because of the sincere gratitude you will receive from the families.

Particularly what is needed are:

■ A sufficient number of attorneys to do the guardianships so that the work is spread around and doesn’t become too much work for any attorneys.

■ In addition to attorneys to do the guardianships, there is a need for attorneys to serve as the court-appointed attorney for the child. That work is usually done by an attorney from the Public Defender’s Office, but because of the time demands on those attorneys, there is sometimes a delay before they can do the necessary interview.

■ Depending on the income of the individual families, and the preferences of the attorneys involved, the guardianships would be done either on a pro bono basis, a reduced fee basis or, a fee for service basis.

Here is a brief overview of what is involved in doing a special-needs guardianship, which you may already know from the work you have previously done:

1. Talking to the parent(s) who will be the guardian(s) to gather the information necessary to prepare the Petition for Appointment of Full and Permanent Guardian. This can easily be done by phone.

2. Prepare the Petition for Appointment of Permanent Guardian and file it with the District Court. After the Petition has been filed, prepare an Order Appointing a Physician, Visitor and Attorney for the judge to sign.

3. Write to the physician and visitor requesting their reports indicating their agreement that a guardian should be appointed.

4. After receiving the reports from the physician and the visitor, send those reports to the public defender’s office (or the independent attorney being used in place of the public defender) so the parents and the daughter or son can be interviewed and an independent evaluation can be made as to the appropriateness of the guardianship.

5. After the guardianship has been approved by the public defender’s office (or by the independent attorney), file with the court the reports of the physician, visitor and attorney and prepare an Order Appointing Full and Permanent Guardian.

6. The guardianship must be filed in the county where the Ward resides. If no one is contesting the guardianship, and that is the situation in the vast majority of the cases, the court can enter its Order without the necessity of a hearing. This also makes it easy to do a guardianship in a county other than the county in which you practice.

7. Once the court has entered its Order Appointing Full and Permanent Guardian, prepare the Letters of Guardianship and arrange for the letters to be signed by the parent(s) and issued by the court.

A question is sometimes raised as to whether these guardianships should be done on a pro bono basis if the family involved is not low income. In working with many of the special-needs families we have learned that the time, energy and money demands for those families are so much more than for a family without a special-needs daughter or son that any assistance that can be rendered is welcomed and appreciated. We have also learned that because of the expenses involved, many of the families are reluctant to contact an attorney. That’s why we are getting feedback from various people to find a recommended policy concerning attorneys’ fees that will be fair to everyone involved and yet welcoming and encouraging to the families.

In coordination with the State Bar of Montana, we would like to establish a network of attorneys throughout Montana who would be willing to do special needs guardianships. This proposal was presented to local bar presidents at their Local Bar Leadership Conference in Helena in April 2016 and received a very favorable reception.

We are hopeful we can come up with a list of attorneys, literally from Sidney to Libby, who would be willing to assist with these guardianships. The names of those attorneys, and their contact information, would be kept by the program and information regarding the program would be advertised to various social service agencies across the state that work with special needs families. Also, to assist the attorneys who are interested in doing the guardianships we will be having a webinar and following, those that participate will be sent a proposed engagement letter, a complete set of court documents and proposed letters to the physician, visitor and public defender electronically. The two of us will be available to travel to local bar meetings to do presentations on the whole guardianship process and answer questions. We will also be available to take calls at any time during the process if attorneys have questions. Finally, in cooperation with the State Bar and local bars, the presentations to local bars will be approved for one-half hour of CLE credit and one-half hour of ethics credit
In the smaller communities in Montana we will probably only need one or two attorneys to volunteer. However, in the larger communities we hope to have at least 8 or 10 lawyers to volunteer. That way, no one lawyer will become overloaded and if the lawyer is asked to do a guardianship but can’t at that particular time, there will be others in that community the clients can call.

We are now working out the details of how this pilot statewide Guardianship Program will be administered, how lawyers will sign up for it, and how help will be provided as lawyers begin the process. Once that has been completed we will publish a follow-up article with that information. Pending that publication if you have thoughts, questions or suggestions, feel free to call us (Tom Lynaugh, 406-670-4187, or Larry Riley, 406-218-8800).
In the book “The Happy Lawyer,” authors Nancy Levit and Douglas O. Linder refer to an ageless observation by Aristotle:

Aristotle used the words “good spirit” to describe the feelings that accompany a life well lived – one of engagement and immersion in activities that contribute to a better society. Aristotle believed that true happiness came not simply from feeling good – but from feeling good for good reasons – a feeling that generally comes from doing good.

Assisting with these special needs guardianships will be doing good.

Larry Riley practiced law for 50 years with Garlington, Lohn and Robinson in Missoula and now heads up the Elder Justice Program for Missoula Aging Services as a full-time volunteer. Tom Lynaugh practiced for 40 years with the Billings firm Lynaugh, Eiselein, Fitzgerald and Grubbs, has been active in the in Yellowstone County pro bono program for over 25 years and is currently chair of the Yellowstone Area Bar Association Pro Bono Committee.