December 9, 2008
You Can Pick Your Friends and Your...But Not Your Family
The Massachusetts Committee on Judicial Ethics opines that a judge may not continue to serve as a court-appointed conservator absent a close familial relationship with the ward, which was not present in the situation presented:
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.
The opinion notes that the inquirer had served for 30 years. (Mike Frisch)
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