Guardianship Case Law

Guardianship Case Law Update, by K.T. Whitehead as presented at the Texas State Bar Guardianship Seminar, Spring 2003, Copyright K.T. Whitehead, 2003 Introduction There are very few published guardianship decisions. Several factors may contribute to the lack of case law. First, the guardianship statute was revised in 1993, clarifying many areas and codifying others where controversy has arisen in the past. The 1993 overhaul of the guardianship code codified or overturned much of the early case law. Thus when researching in this area, one must first look to the statute and filter the case law through the new code, being careful not to use old case law which has been modified or overturned by statute. Second, the statute addresses the vast majority of the guardianship issues. The probate, county and district courts which handle guardianship cases appear to use the statute to guide their decisions. The courts hearing guardianship matters usually are probate courts or county courts at law, which oversee the administration of probate and guardianship proceedings. The dependent administrations in both areas are just that, administration. These proceedings handle the day to day management of personal affairs. So a third factor limits appeals; the vast majority of these matters are not contested and involve only one party. Fourth: one party, the proposed Ward, is usually incapacitated in a guardianship matter. By statute, the proposed Ward has court appointed counsel. Right or wrong, once the initial trial phase has ended, the counsel for the Ward is usually discharged. Thus, the ability of the Ward to challenge the court's ruling is limited. It is unclear if the attorney ad litem has a duty to appeal if the client requests, though it is generally assumed that the ad litem should. To do so, the attorney ad litem would most like need to seek court permission. The attorney ad litem has the duty to advocate. The trial court, having ruled on incapacity, would take into consideration the capacity of the Ward to direct the pursuit of such appeals. If the Ward seeks private counsel, counsel would have public notice that the Ward may be incapacitated and would pursue such representation at his or her own peril. In most guardianships, the right of the Ward to contract is terminated in the order appointing a Guardian. (The statute does, under limited circumstance, allow the Ward to hire counsel to seek restoration. TEX. PROB. CODE ANN. §§694A-694G (Johanson 2002).) The avenues of appeal and further trial are limited as the Ward lacks counsel. The majority of the following cases are appealed by a contestant, other than the Ward, in the guardianship proceeding. There are spectacular guardianship contests, noteworthy because of the depth of emotion of various family members and the proposed Ward, which cause old family roles and emotions to be aired in court. However, the vast majority of guardianship cases are uncontested. Guardianships are usually initiated by necessity when there is no other way of managing financial affairs or personal care decisions. The need to appeal and thus create new case law is minimal. For all of these reasons, there is very little case law. The following cases are from September 1, 1993, (the enactment of the current guardianship code) through January 2002. These summaries are meant to give the reader a starting point, not a comprehensive interpretation. CASE LAW In re Guardianship of Soberanes, No. 04-02-00119-CV, 2002 Tex. App. WL 31863704 (San Antonio December 24, 2002, no pet. h.) (not designated for publication). Marcello Quintanilla Soberanes ('Marcello'), a Mexican citizen, was released unexpectedly from a Laredo hospital to his daughter from his first marriage, Maria Cristina Quintanilla de Sanchez ('Sanchez'). Sanchez immediately sought and was granted temporary guardianship. Between the granting of the temporary guardianship and the ten day hearing which extended the temporary guardianship by agreement between Sanchez and the ad litem, notice did not issue to Marcello's wife Marta Verges de Quintanilla ('Marta'). The guardianship was set for hearing on the permanent guardianship. Marta and her children were served notice prior to this setting. At the hearing, Marta filed motions in limine alleging that Sanchez was unsuitable and had claims adverse to Marcello. Marta also filed a contest requesting that she be named Guardian. The court held a brief hearing, not ruling on the motions in limie nor the contest for permanent guardianship. The court continued the status quo and reset the matter. The court did order that Marta be allowed to visit her husband. After attempting to visit her husband, Marta filed an emergency motion claiming that her visit was limited to only five minutes and that verbal and physical abuse occurred. Again, the court deferred ruling on the motion until all parties were served with Marta's emergency motion. At the next hearing, the ad litem asked for a continuance as his client had suffered a relapse and could not be present. The court granted the motion for continuance and restated the visitation privileges and ordered that Marcello remain in Laredo, Webb County, Texas. Sanchez changed counsel. New counsel for Sanchez filed a motion to terminate temporary guardianship on the grounds that Marcello was now in Mexico. The court ruled from the bench that it was terminating the guardianship on the grounds that Marcello had left the state of Texas and the court no longer had jurisdiction. A final judgement was signed. Marta appealed. The court of appeals precluded itself from ruling on the trial court's failure to remove the temporary Guardian as the trial court had not ruled on the motions in limine requesting the removal of the temporary Guardian. Sanchez argued to the court of appeals that the temporary guardianship expired on September 12, 2001, sixty days after it was granted. The appellate court, citing Texas Probate Code § 875(k), found that the temporary guardianship continued because of the contest filed by Marta. The court of appeals overturned the trial court's finding of no jurisdiction stating that jurisdiction attaches when the application is filed. The court cited the reasons outlined in the Texas Probate Code under 694 (expiration, death, regaining of capacity, reaching majority or representative payee status) as the reasons for closing a guardianship. 'Nothing in the Probate Code supports the proposition that a Ward's absence from the jurisdiction alone is grounds for terminating a temporary guardianship.' 2002 WL 31863704 at *3. . The court goes on to say that 'this is especially true under the circumstances presented here, where the temporary Guardian submitted herself and the Ward to the court's jurisdiction...'Id. at *3 . The appellate court overruled the dismissal of the guardianship and found that the hearing should have proceeded on the appellant's Motion to Remove Temporary Guardian, Motion in Limine and the Application for Permanent Guardianship. Note: While not the main issue, the trial court assessed attorney fees for the ad litem against both applicants. The court overruled the fees assessed against Marta and remanded the issue for further hearing as there is no statutory basis for these fees. Since Sanchez did not appeal this issue, the court left in place the order that she pay $3,000 of the ad litem's fees. Practice Tips: 1. If a motion is scheduled, try to create a record by requesting a ruling on motions which are set. 2. Moving the Ward will not effect the court's jurisdiction. When the Ward is moved across county, state or national boundaries, this case along with section 611 of the Texas Probate Code should help protect the rights of the Ward and other parties from cross-border games. 3. When filing a guardianship, the Texas Probate Code §§ 605-606 and 610-611 gives several options for venue and jurisdiction. Think through the options before filing. Once a guardianship or ancillary action is filed, the options are limited to the court's discretion. Guardianship of Whitcomb, 69 S.W.3d 826 (Tex. App.-Corpus Christi 2002, no pet.). (Whitcomb II) And Guardianship of Whitcomb, 35 S.W.3d 220 (Tex. App-Corpus Christi 2000, no pet.). (Whitcomb I) Whitcomb I Two daughters, Anna and Kathryn, filed suit to have a Guardian appointed for their father, Warren Dowling Whitcomb ('Whitcomb'). The trial court appointed the daughters as limited co-Guardians. Whitcomb, the Ward, appealed the co-guardianship appointment and several other points including: finding that it was unnecessary to hire appraisers; that the bond was insufficient; and the finding of partial incapacity. Between the time of the trial and the appeal, one of the daughters resigned leaving only a single Guardian. The court of appeals reversed and remanded the case, finding that the probate code in clear language allows only one Guardian. The court of appeals found that the order was not void, but voidable, on the issue of co-Guardians. At the time of the appeal, the trial court had not ruled on the resignation of one of the Guardians. Thus, the order had not been modified to reflect only one Guardian. The court of appeals reversed and remanded the case with instructions to vacate the order appointing co-Guardians. Whitcomb II On remand, the trial court accepted the resignation of one of the Guardians. The Ward appealed stating that he was entitled to a new trial and, additionally a jury trial. The court of appeals agreed with the Ward, giving the following basis: If a new trial was not had, the other issues of the first appeal would not be addressed. The record indicated that the Ward was not present and there were no findings as to why he was not present when the resignation of the Guardian was accepted. This was a clear violation of Texas Probate Code § 829 which entitles the Ward to be present unless there is a finding that the Ward is not able to participate in the hearing. In this matter the trial court had made no such finding. A proposed Ward is entitled to a jury trial; and the court must give 'reasonable consideration' to the proposed Ward's preference for Guardian. Practice Tips: 1. In this case, 'reversed and remanded' means new trial which, if requested, includes a jury trial. 2. The procedural structure of the probate code is not discretionary. Provisions regarding a jury trial and Ward's preference must be followed. Deviations from these provisions should be noted in the record. Texas Probate Code § 643. 2. When drafting guardianship orders, make sure that all required findings are in the order, like why the Ward is not present at the hearing. Texas Probate Code § 684. Edwards v. Pena, 38 S.W.3d 191 (Tex. App.-Corpus Christi 2001, no pet.). Prior to her death, C.A. Edwards ('Edwards'), Hazel Edwards' ('Hazel') step-son, had served as Hazel's Guardian. Shelly Pena ('Pena') had served as Hazel's personal assistant and secretary prior to the guardianship. After Hazel's death, Pena sued the Guardian for breach of fiduciary duty. In marshaling the assets, the Guardian redeemed a CD which listed Pena as co-owner and listed the new CD in Hazel's name only. Pena claimed the Guardian had wrongfully deprived her of a gift. Edwards counterclaimed that Pena breached her fiduciary duty to Hazel by depleting her estate through fraud, undue influence and duress. At trial, the jury found that the CD had been given to Pena and that EdWards had committed conversion and fraud by taking the CD from Pena. In an interesting but unsuccessful argument, the Guardian claimed judicial immunity for his actions, stating that he was appointed by the court and thus all of his actions as Guardian were protected by judicial immunity. While this is a pleasant thought for those who serve as Guardian, the court of appeals found that judicial immunity attaches in a functional sense only when the appointee is preforming activities that are 'normal functions of the delegating or appointing judge.' 38 S.W.3d at 196. The court of appeals found that a Guardian's actions are not functions of the court and that 'a Guardian may be held liable for failing to exercise due diligence in collecting all claims and debts due the Ward and recovering the Ward's property.' Id. at 196. Edwards argued, and the court of appeals agreed, that a completed gift had not been made when Hazel added Pena's name. Edwards argued that Hazel had not divested herself of ownership when Hazel added Pena's name as she still had the power to exchange or cash the CD at any time. The court reviewed the five-part definition of fraud and found that the Guardian did not commit fraud when he retitled the CD in the Ward's name. The gift was incomplete and Pena owned nothing; therefore, Pena had lost nothing. Practice Tips: 1. While this case rejected the 'gift' theory, many people do their estate planning through account titling. A Guardian should take care to verify and document account titling as well as balances of accounts when preparing the inventory and final accounting. 2. A wise Guardian would request court's permission to spend pro-rata from the various accounts to maintain the Ward's plan and prevent future litigation in this area. In re Guardianship of Norman, 61 S.W.3d 20 (Tex. App.-Amarillo 2001, pet. denied). Edna Hazelwood ('Hazelwood') filed for guardianship of Esther L. Norman ('Mrs. Norman'). Pat Green ('Green') was appointed ad litem. Robert Norman, Mrs. Norman's son, joined the ad litem in contesting the guardianship. Green and Robert moved to dismiss the guardianship claiming Mrs. Norman was not incapacitated and had alternate planning in place even if she was incapacitated. At a hearing on the motion to dismiss the guardianship brought by the ad litem, the court allowed the ad litem to read into the record the doctor's statements and to give his personal opinion about the Ward's capacity. Hazelwood's attorney objected and restated the request for a jury trial. Despite the protestations, the trial court found that there was insufficient evidence to establish incapacity and declared that Mrs. Norman was not an incapacitated person. Hazelwood appealed. On appeal, the court of appeals found, citing section 643 of the Texas Probate Code, that any party to a guardianship proceeding 'is entitled, on request, to a jury trial.' 61 S.W.3d at 23. On appeal, Green argued that the court has the authority to hear the case, make a preliminary determination that there is incapacity, and move foreword to a jury trial only if there is incapacity. The court of appeals found this to be absurd and that it would result in a double trial. The appellate court found that section 692 must be read with 693 of the Texas Probate Code. The court of appeals reasoned that there must first be a finding of incapacity before the court can dismiss. Once a jury is requested, only a jury can make a finding of incapacity. Practice Tip: It appears this case precludes the court from finding that an applicant has failed to make a prima facie case when an allegation of incapacity is made. A powerful tool in a guardianship proceeding is the request for a jury trial. Woollett v. Matyastik, 23 S.W.3d 48 (Tex. App.-Austin 2000, pet. denied). Milam County Court on its own motion transferred a contested guardianship matter to district court in accordance with section 606 of the Texas Probate Code. At a preliminary hearing the district court appointed a temporary Guardian with authority to expend up to $50,000.00 from 'the Ward's estate for the care and maintenance of the Ward, including payment of expenses associated with this guardianship proceeding without further Court approval.'23 S.W.3d at 51. The court order went on to require that other fees and expenses be submitted and require contesting parties to file objections within ten days if they objected to the application. The temporary Guardian then filed for payment of expenses, seeking $13,543.12 in attorney's fees for expenses arising from the administration and management of the estate. The district court granted the motion. The other parties appealed. The Ward died after the notice and filing of the appeal. Two important issues were raised on appeal. First, the appellants contended that the district court did not have jurisdiction over administrative matters. They argued that once the contest is resolved, the case is transferred back to county probate court. The court of appeals rejected the argument, holding that once the case was transferred to district court, district court had original probate jurisdiction to hear all matters incident to an estate. Thus, a district court may become the proper court for administration. Next, and crucial for those who practice in this area, attorney fee applications must be submitted with proper evidence. While attorney fees may be paid from the Ward's estate, the request for attorney fees must be supported by sworn evidence that the fees were reasonable and necessary, detail the work completed, state the attorney's hourly rates or the hours expended, and that the rates are reasonable and customary in their area. Practice Tip: Do not make blanket applications combining attorney fees and general expenses. Set forth the Guardian's expenses and the expenses of administration separately. When making application for attorney fees, provide an affidavit signed by the attorney setting forth that attorney's hourly rate and that the rate is reasonable and customary in the community. Overman v. Baker, 26 S.W.3d 506 (Tex. App.-Tyler 2000, no pet.). Olive Overman ('Overman'), an applicant for temporary Guardian, was sanctioned and had attorney ad litem fees levied against her by the trial court for filing an application for temporary guardianship when it was later discovered that the proposed Ward had a pre-need declaration of guardianship naming a third party. Overman successfully appealed the ruling. The appellate court wrote with great insight into the facts that the Ward's behavior during the year prior to the filing of the guardianship demonstrated good cause for filing the guardianship application. The court cited the change in the Ward's attitude toward her trusted family member, and the mistrust and anger toward her long-trusted family member in favor of a new friend. The court found that for a temporary guardianship, a doctor's report may not be necessary; rather, specific behavior of a potential Ward may be enough to initiate and grant a temporary guardianship. The court of appeals found that the ad litem's fees must come only from one of two places: the Ward's estate or the county. The trial court's assessment of fees against the applicant was reversed. Practice Tip: This ruling seems to say that while a party may be precluded from serving as Guardian, if the party makes an application without knowledge of the preclusion, they can be acting in good faith. See Texas Probate Code §§ 665B and 666. Thedford v. White, 37 S.W.3d 494 (Tex. App.-Tyler 2000, no pet.). Alma Louise Grove's ('Grove') niece, Jonelle M. White ('White'), and sister, Lois Dean Thedford ('Thedford'), filed competing applications for guardianship of Grove. At trial, the court appointed White as Guardian of the estate with a $125,000 bond and Thedford as Guardian of the person with a $2,000 bond. White qualified the day of the hearing by filing her oath and bond. Thedford failed to file either her oath or her bond within twenty days of the hearing. On its own motion, the court removed Thedford as Guardian of the person and appointed White. The court of appeals found that the trial court has full discretion over whether to remove a Guardian for failure to qualify. The court of appeals dismissed Thedford's argument that she had not had the opportunity to explain to the court why she had not qualified. The appeals court narrowly construed the statutory distinction between a Guardian removed for cause (for abuse and mishandling funds) and one removed for failing to meet statutory qualifying procedure. Those removed for cause are entitled to a hearing. Those removed for failing to qualify have no recourse. Practice Tip: Carefully docket statutory deadlines in guardianships. Properly document your file showing that qualifying documents and reminders are sent to the Guardian. See Texas Probate Code § 699-709. In re Guardianship of Lynch, 35 S.W.3d 162 (Tex. App.-Texarkana 2000, no pet.). Elizabeth Lynch ('Lynch') was diagnosed with Alzheimer's Disease. Her two daughters, Kathie Jewell ('Jewell') and Karen Lodes ('Lodes,') disagreed about her care. After trial before a six person jury, Lodes was appointed Guardian and Jewell appealed. Jewell argued and the court of appeals agreed that the attorney ad litem had not met the statutory requirements of certification. However, the court refused this issue as it was not raised at trial and thus not preserved for appeal. The question of the importance of the certification of the ad litem was not addressed. Next, the question of the Ward's preference was raised. Approximately one year prior to the guardianship hearing, Lynch had signed a pre-need declaration of guardianship designating Lodes as Guardian. In a deposition just before trial, Lynch stated that she did not care who was her Guardian. The jury found that Lynch had capacity when she designated Lodes. Failure to give a jury charge as to capacity the year prior to the signing of the pre-need was not required as it was not critical to the jury's decision. On appeal, Jewell argued that if a statutory probate court could be required to have a twelve-person jury, so could a county court at law. Lamar County, where the hearing was held, has a county court at law which shares concurrent jurisdiction with district court. County courts at law that are not statutory probate courts empanel six-person juries. The appeals court found she had no right to a twelve-person jury and further that she had not preserved the error. Practice Tips: 1. Know your probate code and preserve error on procedural issues. If an attorney ad litem is not certified, make the challenge promptly. 2. Determine early if you are in a county probate court or a statutory probate court. If a twelve-person jury is preferred, move county court cases to district court. Torres ex. rel. Ramon v. Ramon, 5 S.W.3d 780 (Tex. App.-San Antonio 1999, no pet.). This is a clear case of preserving issues for a post-death probate fight. Esther Gill Torres, as daughter and Guardian for Mary Ramon, appealed the trial court finding that Horatio Ramon ('Horatio') was Mary C. Ramon's common law spouse. The court of appeals found that once the trial court found that Horatio was not qualified to serve as Guardian, it was unnecessary to make a finding that would give him preference, as spouse, to serve as Guardian. The appellate court ruling had no impact on the immediate case. The only significance of the finding was to reserve the issue of common law spouse for a later date. Practice Tip: Extraneous findings may be reason for appeal if the finding might latter hurt the clients in a probate proceeding. In re Guardianship of Murphy, 1 S.W.3d 171 (Tex. App.-Fort Worth 1999, pet. ref'd). This case involves jurisdictional issues. The transfer of the guardianship case from Wichita County to Harris County was appealed. The majority of the court of appeals found that the order transferring jurisdiction was not final and was not appealable, concluding the court lacked jurisdiction for review. A strong dissent was written by Justice Brigham. When is a probate court order final and appealable? The finality and appealability of probate and guardianship orders is an unsettled area of law. The majority held that the issue of venue, by statute, is not appealable reasoning that the transfer order did not dispose of any phase, parties or issues in the Ward's guardianship proceeding; thus, it is interlocutory. The majority goes on to state that none of the cases which discuss the appeal of a venue decision discuss where the appeal should take place. The dissent argued that the appealablilty of a probate order is somewhat unsettled and because the legislature cannot identify these issues in advance, the appealablilty of a probate order is left to the courts. The dissent acknowledged that a guardianship is an ongoing proceeding and thus a series of various orders. The dissent goes on to argue '[I]f the transfer of the core guardianship proceeding is not appealable now, when would it be appealable? The majority opinion, I believe, disregards the Supreme Court's policy to avoid constructions that defeat bona fide attempts to appeal.' 1 S.W.3d at 175. Practice Tips: 1. Jurisdiction appeals are risky. Cases and statutes are contradictory. Further, there is no clear statute governing the venue of the appeal. 2. The definition of interlocutory is a moving target. Trimble v. Texas Department of Protective and Regulatory Services, 981 S.W.2d 211 (Tex. App.-Houston [14 Dist.]1998, no pet.). The Texas Department of Protective and Regulatory Services (The Department) was appointed Temporary and then Permanent Guardian of Edna Trimble ('Edna'), ninety-one. James J. Trimble ('James'), her husband, appealed the trial court's exercise of its discretion as to who should be appointed Guardian; the inadequacy of the findings in the trial court order; the sufficiency of the evidence; and the control of the community property. The appeals court found that the trial court has broad discretion in the selection of the Guardian. The appeals court agreed that the spouse is entitled to be appointed if he is eligible. Here though, the trial court found that the spouse was ineligible, as he was 'incapable of controlling and managing Edna and her estate and he lacked the ability to follow through with recommendations from Protective Service and with court orders.' 981 S.W.2d at 216. The appeals court ruled that when James was ineligible to serve as Guardian, and the Ward's two daughters declined to serve. The trial court did not abuse its discretion by appointing the Department as Guardian under these circumstances. James argued that procedurally, the court should have made specific findings of fact, or state the appropriate standard for the findings in its order. The appeals court stated 'the better practice is to draft explicit findings following the language of section 684. Nevertheless, the trial court's omission of language describing the type of evidence it considered in determining Edna's incapacity does not render the trial court's determination of incapacity void or voidable.'Id. at 217. The decision has an interesting discussion of the timeliness of the doctor's letter. When The Department filed the application for temporary guardianship, they filed a doctor's report. The doctor's report was not entered into evidence at the temporary hearing and it was excluded as hearsay evidence. The Department used the same letter when it filed for permanent guardianship. Because of the time delay between the two applications, the letter was out of date by three weeks at the time of the permanent hearing. Trimble argued that the letter was out of date and that it had been excluded at an earlier hearing. In a correct outcome poorly reasoned argument, the court made two points when it denied the appeal of the out-of-date doctor's letter. First, it noted that the statute does not delineate between the applications for temporary and permanent guardianship. The letter was timely for the temporary guardianship. Further, if the trial court errs in applying the law, such error is not reversible unless it caused an improper judgement. James argued that he was entitled to manage the community property. The court agreed that if a timely request is made by the non-incapacitated spouse for the community property, the Guardian must deliver the property. The appeals court found that James made no demand and thus waived his right. Practice Tip: It is doubtful whether other circumstances would support the appeals court's finding that the out-of-date doctor's letter was valid. If a guardianship is contested, have the doctor present. If it is not contested, be mindful of the statutorily imposed dates and have a current doctor's letter (See Texas Probate Code § 687). In re J7S Inc., 979 S.W.2d 374 (Tex. App.-Houston [14 Dist.) 1998, pet. dism'd by agr.). Relators challenged the probate court's authority to refuse to transfer a suit brought by a Guardian, The Guardian sought a declaratory judgment in probate court regarding a sale of real property, sold by the Ward just prior to the guardianship. The property in question was in Atascosa County and the guardianship was in the statutory probate court in Harris County. Relators sought to have the case transferred to district court in Atascosa County. The court of appeals found the district court has exclusive jurisdiction 'except where jurisdiction is conferred by the Constitution or other law on some other court.' 979 S.W.2d at 376. The court found that sections 606 and 607of the Texas probate code confer jurisdiction on the statutory probate courts to hear '[a] matter appertaining to or incident to a guardianship estate.' Further section 607 'provides that 'in a situation in which the jurisdiction of a statutory probate court in concurrent with that of a district court, a cause of action appertaining to or incident to an estate shall be brought in the statutory probate court rather than the district court.' Id. at 377. The court goes on to cite section 608 of the Texas Probate Code which allows the probate court to transfer district court cases to itself. While the Relators argue that the Civil Practice and Remedies statutes control, the appeals court finds that probate court jurisdiction controls through the specific probate code sections. Barring an abuse of discretion, the probate exercise of jurisdiction controls. Practice Tip: The statute governing probate jurisdiction is powerful. Think through the use of the authority before moving the case to or from probate court. Stubbs v. Ortega, 977 S.W.2d 718 (Tex. App.-Fort Worth 1998, pet. denied). Burinda Beth Ortega ('Ortega'), the Guardian of Marcella Tabor ('Marcella'), sought and was granted permission to seek divorce for Marcella from Clyde Tabor ('Clyde'), her husband of fifty years. Subsequently, Clyde was placed under guardianship and his Guardian, Durinda Dawn Stubbs ('Stubbs') appealed the divorce decision. Marcella's Guardian argued that the divorce order was interlocutory and could not be appealed. The court of appeals found that the order allowing the Guardian to seek divorce was not interlocutory and that an appeal could be had. The court then went on to find that there was sufficient evidence to seek divorce and upheld the trial court's decision granting the Guardian permission to seek divorce. Clyde's Guardian argued that divorce sought by a Ward was against public policy. The court stuck down this argument, making an analogy with the rights of a mentally ill person who would be able to exercise every right granted by the United States Constitution, laws, or state constitution, or law by and through an ad litem. A mentally ill person may seek divorce through an ad litem or next f