Student Spotlight: The Role of Arbitration in the Probate of Guardianships and Conservatorships
Essay by Diana Ho
Probate is the act of proving that an instrument, claiming to be a will, was signed and properly executed in accordance with the law.  In addition, probate proceedings include settlements regarding a decedent's estate, a minor's estate, or an incapacitated person's estate.  Consequently, probate affects two primary groups, incapacitated persons and minors.  This paper focuses on incapacitated persons and specifically, on the elderly because they are in such dominance in society.  In general, this paper argues that arbitration should not be used to probate guardianship and conservatorship matters regarding incapacitated persons.
As of July 1, 2003, the U.S. Census Bureau estimated that there were 35.9 million people age 65 and over in the nation.  The top five states with the highest number of older people in its population were California, Florida, New York, Texas, and Pennsylvania.  Following closely in sixth place was Ohio with 13.3% of the population age 65 and over (compared to Florida's 17%).  On the whole, the nation showed an increase of 927,000 people in this age group.  In fact, the U.S. Census Bureau reported that by 2035, the nation's elderly population will reach 71 million persons - doubled from last year's figure. 
With the increase in the elderly population in the near future, disputes will surely arise as well, and the courts will need to adjust their system to accommodate for this increase. Traditionally, the courts interpret and apply federal and state legislation to resolve litigation regarding the elderly.  Currently, the courts are struggling to balance three competing goals: ensuring that the elderly receive the services they need, protecting the elderly from unnecessary restrictions on their autonomy and freedom, and maximizing and conserving the judicial resources.  This essay argues that arbitration, as an alternative dispute resolution technique, should not be used as a tool for courts to protect the rights of the incompetent elderly.
II. Overview of Guardianships and Conservatorships
The purpose of guardianships and conservatorships is to assist individuals who are incapable of caring or making decisions for themselves.  Guardianships and conservatorships are legal arrangements in which a person, called the guardian or conservator, is given legal responsibility for another person, called the ward, who is unable to take care of his or her affairs due to minority or incompetency.  Guardianship is commonly referred to as the guardian's legal responsibility for the health and welfare of the person (ward) deemed incompetent by the court.  Additionally, in some jurisdictions, a guardian may also be responsible for an incompetent person's property.  .However, other jurisdictions appoint two separate individuals, in which one looks after the ward's health and welfare and the other, called the conservator, looks after the ward's property.  Despite the differences in classification, the law governing these arrangements is similar or identical in most U.S. jurisdictions.  Therefore, for purposes of this paper, guardianship will represent both guardianship and conservatorship unless otherwise indicated.
There are three forms of guardianships - limited/full, temporary/permanent, and minors. After parties decide which type of guardianship to invoke, a guardianship hearing is set. The main purpose of this hearing is for the court to determine whether the ward is competent or not.  When the court appoints a guardian, the ward loses all rights to decide anything about his life.  For instance, the ward can no longer receive money or pay his bills.  The appointed guardian decides where the ward lives, what medical treatment the ward will get, and possibly, when the ward will die.  Further, guardianship deprives the ward of the freedom to determine life decisions such as whether to marry, what clothing and necessities to buy, and what friendships to keep.  As a ward's loss of civil rights is in jeopardy, the proper administration and implementation of the guardianship process becomes even more significant.
III. Comparison of Probate Arbitration to Divorce Arbitration
A. Divorce Arbitration: Child Custody and Visitation
Many couples are concerned about the costs and the aggressive nature of divorce litigation and have tried to bind each other to an arbitration agreement.  While some overburdened courts undoubtedly have reason to enforce those arbitration agreements, other courts are reluctant to impose those agreements for the arbitration of child custody and visitation matters.  These latter courts argue that their refusal to impose these agreements is because of their parens patriae role as protector of the children's best interests.  However, even those courts have in few excepted cases, held that an arbitration agreement is enforceable as long as the arbitrator's decision can be judicially reviewed de novo.  Thus, courts are split on how to handle the issues of child custody and visitation.
On one side, many courts have refused to enforce arbitration agreements that pertain to child custody and visitation rights.  On the other hand, some courts are open to arbitration agreements and have held that those agreements are enforceable as long as the arbitrator's decision is subject to de novo judicial review.  These court decisions are peculiar because they enforce the arbitration agreement only in a "token fashion."  And ironically, many courts feel it is necessary to follow this "symbolic gesture toward arbitration."  Furthermore, this caveat of arbitration followed by de novo judicial review, symbolizes a compromise between two competing public policies - those favoring arbitration (and alternative dispute resolutions) versus those who favor the doctrine of parens patriae (the courts' responsibility to ensure the best interests of the children). 
In Kelm v. Kelm, the Ohio Supreme Court held that arbitration followed by de novo judicial review creates a dragged-out process, which does not further the goals of arbitration, nor the best interests of the children.  Specifically, this two-step procedure does not shorten the time, does not decrease the costs, does not ensure the finality, and does not relieve congested court dockets.  This token gesture merely adds another step to the divorce process. Additionally, the children's best interests as to custody and visitation are not sustained as the ultimate decision is postponed by a rehearsal judicial review in front of the arbitrator. 
Moreover, this two-step procedure of arbitration and de novo review is in disaccord with the parties' expectations of an arbitration agreement.  For instance, the parties enter into the arbitration agreeing to accept the final outcome and for a limited judicial review.  By adding the de novo requirement, the parties' desires for fast and minimal costs of arbitration are sacrificed and thus, they are less likely to accept arbitration.  The bottom line is that to make arbitration an effective dispute settlement technique, the main goal should be to allow arbitration awards maximum finality. 
A typical, nationwide approach is similar to the one adopted in the Michigan Court of Appeals in Dick v. Dick.  In this case, the court held that child custody issues may be resolved through arbitration and there is only limited judicial review.  However, the Dick's court decision to choose arbitration over parens patriae is foolish.  In other words, the values of the parens patriae doctrine should be chosen over those of arbitration.
The tension between the values of arbitration and parens patriae is a result of the changing legal culture. The increasing view is that legal disputes in every area of law are private matters between the individual litigants and so, they are best resolved quickly and cheaply.  The concern is for those cases that raise important public issues, such as constitutional issues or matters that involve rights of parties who are partially or completely disempowered, such as children in divorce disputes and wards in guardianship matters.  For example, the doctrine of parens patriae refers to the state's role as guardian to those under disability.  Consequently, the state's role entails a public function and as a public function, it should be carried out in public proceedings. 
Shifting public disputes to private forums is dangerous as it stifles both the public awareness of how public issues are being resolved  and the development of certain areas of the law.  In other words, the development of children's rights, and domestic relations law in general, could be lost as the courts are moving toward rising alternative dispute resolution processes.  Thus, public matters regarding children's rights in divorce disputes, and similarly, incapacitated persons' rights in guardianship matters, should remain in public proceedings in the court.
The main concern of child custody and visitation matters in divorce proceedings is that the best interests of the children will be short-changed in alternative dispute resolution proceedings because they are geared to be private, unguided, and expeditious.  Furthermore, arbitrators are "non-judicial officers whose obligations are to the parties and who not only lack a duty to apply the rigors of the law, but frequently are unqualified to do so."  On the contrary, courts have been viewed historically as the guardians of public interest.  Therefore, child custody and visitation matters should be reserved only for court adjudication and not for arbitration.
B. Probate Arbitration: Analysis of its Inappropriateness
Similarly to child custody and visitation matters, arbitration is not the proper resolution process to probate guardianship and conservatorship matters. Children and wards have many common aspects. For instance, similar to children in divorce disputes, wards in guardianships are incapable of knowing what is in their best interests  because either they are too young or are mentally incapacitated. Furthermore, children of divorcing parents and incapacitated wards get little, if any, input into the decisions that affect their lives.  Consequently, children and wards do not have a voice in their family battles, yet they are the ones with the most at stake and the ones most adversely impacted by the divorce and guardianship.  In addition, children of divorcing parents and incapacitated wards are severely disadvantaged.  And like many disadvantaged groups, they must rely on the "fairness and the impartiality of the courts to secure their best interests."  Thus, the open nature of court adjudication and the public supervising those results  ensures that courts under the doctrine of parens patriae will follow through on their responsibilities to protect society's children and wards.
Currently, the majority of the courts hold that child custody and visitation disputes are either not allowed in arbitration or that an arbitrator decision is subject to de novo judicial review.  The American Arbitration Association, case law, court rules, and statutes are all silent on the prohibition of using arbitration in guardianship and conservatorship matters. Nevertheless, with rising litigation costs and congested court dockets, it is possible for courts to increasingly favor alternative dispute resolution processes.  However, even though alternative dispute resolution works well with continuing relationships, arbitration is generally more focused towards one-shot deals.  Specifically, when dealing with children and incapacitated persons, there needs to be a continual relationship with a constant authority, such as the court. Thus, even though arbitration may not be an effective alternative dispute resolution process to the probate of guardianships and conservatorships, there may be other processes which are more compatible in resolving these matters.
 Barron's Law Dictionary 375 (3d ed. 1991).
 See id.
 An incapacitated person is anyone who is mentally or physically disabled. The elderly is often described within the incapacitated category.
 There are about 1,250,000 incapacitated adults under guardianships in the United States. Some common conditions that impair the competency of the elderly are: depression, bipolar disorder, delirium, dementia, Alzheimer's disease, schizophrenia, and delusional disorder. Kingshuk K. Roy, Note, Sleeping Watchdogs of Personal Liberty: State Laws Disenfranchising the Elderly, 11 Elder L.J. 109, 113 (2003).
 Robert Bernstein, U.S. Census Bureau: Press Release, available at http://www.census.gov/Press-Release/www/releases/archives/population/001703.html (last visited Sept. 21, 2004).
 Id. available at http://www.census.gov/Press-Release/www/release/CB04-36Table-3.pdf (last visited Sept. 21, 2004).
 Id. Specifically, Ohio had 1,516,771 people age 65 and over. Id.
 Paula L. Hannaford & Thomas L. Hafemeister, The National Probate Court Standards: The Role of the Courts in Guardianship and Conservatorship Proceedings, 2 Elder L.J. 147, 148 (1994).
 Id. at 149.
 See Vicki Gottlich, The Role of the Attorney for the Defendant in Adult Guardianship Cases: An Advocate's Perspective, 7 Md. J. Contemp. Legal Issues 191, 197 (1995).
 See Hannaford & Hafemeister, supra note 9, at 149.
 Id. On the contrary, in California a conservator is appointed by the court to care for a person who is mentally disabled while a guardian is appointed to care for a minor. Phillip B. Tor & Bruce D. Sales, A Social Science Perspective on the Law of Guardianship: Directions for Improving the Process and Practice, 18 Law & Psychol. Rev. 1, 4 (1994). Moreover, in Ohio, a guardian is appointed to care for and manage an incompetent ward, the estate, or both, whereas the conservator is arranged to care for and manage a competent ward, his property, or both. Ohio Probate §7.01 (1) (2002); Ohio Probate §7.02 (1) (2002). Thus, the only distinction between these two arrangements is the capacity of the ward and not whether the appointment is for the ward's health or the ward's estate.
 Hannaford & Hafemeister, supra note 9, at 149-50.
 Tor & Sales, supra note 16, at 4.
 Gottlich, supra note 12, at 197.
 Andre R. Imbrogno, Arbitration as an Alternative to Divorce Litigation: Redefining the Judicial Role, 31 Cap. U. L. Rev. 413, 413 (2003).
 Id. For instance, when asked about the alternatives to the overloaded court docket, Chief Justice Burger admitted that the court system might not be the best forum for certain types of disputes. Christine Albano, Comment, Binding Arbitration: A Proper Forum for Child Custody?, 14 J. Am. Acad. Matrimonial Law 419, 429 (1997).
 Imbrogno, supra note 23, at 413.
 Id. In the case of Sheets v. Sheets, the New York appellate court held that parties have the right to choose arbitration for child custody matters, but they also have the right to a de novo judicial review if the parties can show that the arbitrator's award was "adverse to the best interests of the child." Sheets v. Sheets, 22 A.D.2d 176, 178 (N.Y. App. Div. 1964). Unfortunately, although the Sheets rule has been widely followed in many different states, it is still unclear exactly when a judge will find a decision to be clearly "adverse to the best interests of a child." Albano, supra note 24, at 435. Consequently, leaving this opportunity for de novo review may subject the parties to essentially two trials. Id.
 Imbrogno, supra note 23, at 416. For instance, in a more recent case, Glauber v. Glauber, the New York appellate court refused to follow the Sheets rule and held that arbitration was an improper forum for child custody. Albano, supra note 24, at 435. In that case, a husband and wife divorced and in their agreement, they provided for a Rabbi arbitrator to deal with future disputes regarding child support, visitation, and custody of their son. Glauber v. Glauber, 192 A.D.2d 94, 95 (N.Y. App. Div. 1993). The Supreme Court of New York held that an arbitration order should not be enforced if there is strong public policy that supports the notion that custody determinations should not be left to an arbitrator. Id. at 97. Furthermore, the court added child custody and visitation matters to the list of subjects that should not be arbitrated because they were "so interlaced with strong public policy considerations that they have been placed beyond the reach of the arbitrators' discretion." Id.
 Imbrogno, supra note 23, at 416.
 Id. Even though the court in Sheets acknowledged the de novo judicial review to improve the arbitration of child custody matters, the court also stated that its "parens patriae duty takes such precedence over the parties' decision to arbitrate that 'duplication of time, expense and effort seems inevitable. Nor does it seem advantageous to the best interests of the child that the question of custody be postponed while a rehearsal of the decisive inquiry is held.'" Albano, supra note 24, at 436 (quoting Glauber, supra note 27, at 97).
 Imbrogno, supra note 23, at 416.
 Id. at 416 & 419.
 Id. at 419. In this case, the appellee wife filed motion to change or terminate the parties' shared parenting plan, which provided that any future disputes between the parties regarding child custody or visitation be submitted to arbitration. Kelm v. Kelm, 749 N.E.2d 299, 300 (Ohio 2001). The Supreme Court held that parties could not bind the court by agreeing to arbitrate and it was the court's responsibility to protect the best interests of the children over the interests of the parents. Id. at 304.
 Imbrogno, supra note 23, at 419.
 Id. at 420.
 Id. Furthermore, the delay puts the non-custodial parent at a disadvantage because the child spends less time with him or her and because the longer the delay, the more likely the custodial parent will be awarded the child. Albano, supra note 24, at 432.
 Imbrogno, supra note 23, at 420.
 Id. This case involved a dispute between the plaintiff husband and defendant wife where both parties agreed to divorce arbitration. Dick v. Dick, 534 N.W.2d 185, 187 (Mich. Ct. App. 1995). The court held that the agreement was one of binding arbitration. Id. at 188.
 Imbrogno, supra note 23, at 420.
 Id. at 421.
 See id. at 422.
 Id. at 423.
 Id. at 422.
 Imbrogno, supra note 23, at 422.
 See id. at 423.
 See id.
 See id.
 See id.
 Id. at 424.
 Imbrogno, supra note 23, at 424.
 Discussion with Christopher Fairman, Professor, Ohio State University Moritz College of Law, in Columbus, Ohio. (Feb. 3, 2004) (notes on file with author).