April 30th, 2012

It happened again in Florida. (more…)

April 23rd, 2012

Effective May 1, 2012, new amendments to the Delaware Chancery Court Rules will materially change the required content of consent petitions to modify trusts.  The official website of the Delaware judiciary describes the amendments as “help[ing] the Court protect trust assets of minor and unborn beneficiaries and ensur[ing] the integrity of the Court in the process of modifying trusts.”

So what’s the big deal?  Let’s see . . . (more…)

April 18th, 2012

Talk to a guardian or conservator and you’ll likely find out it is a thankless, demanding job.  Often these fiduciaries not only have to provide a great deal of care and protection for their wards but also have to be wary of persons eager to bring claims against them for converting the ward’s assets, breaching fiduciary duties, or any number of other possible claims.

Take for example the case of James McQuien.  McQuien began living with Clorina Haring way back in 1974.  In 2001, Haring wasn’t doing so well on account of Alzheimer’s, so McQuien was appointed Haring’s guardian and conservator.  In this role, McQuien hired a sitter for Haring while he was at work and wrote checks to himself and for cash, some of which he used to pay the sitter and the rest of which he used for food and other household expenses.

McQuien also filed his annual reports with the probate court, none of which was challenged.

Nevertheless, after Haring’s death, the executor of Haring’s estate petitioned the probate court for a final accounting and settlement from McQuien.  After a two-day bench trial, which included testimony from 15 witnesses including experts in assisted living and home health care, the probate court accepted McQuien’s accounting and discharged him and his surety from any other estate obligations.  The probate court’s order was affirmed by the Georgia Court of Appeals in In re Estate of Haring.  Let’s briefly see why. (more…)

April 16th, 2012

Before we jump into this landmark case from Connecticut, let’s take a very brief look at the procedural and factual history of Gross v. Rell (concurrence and dissent here).

Daniel Gross had a leg infection, which was treated in New York.  After being discharged from the New York hospital, he went to Waterbury to further convalesce.  He was admitted to Waterbury Hospital because of complications, and nine days later a hospital employee filed an application for appointment of conservator in Waterbury Probate Court.  An attorney was appointed for Gross in the involuntary conservatorship action.  A conservator was ultimately appointed, and a week or two later, the conservator placed Gross in the ‘locked ward’ of Grove Manor Nursing Home, Inc.

Gross filed a petition for a writ of habeas corpus, which was granted.  A free man, Gross then brought a claim in federal court alleging that his civil rights were violated by the conservator, the attorney, and the nursing home.  The federal court dismissed the case finding that the conservator, attorney, and nursing home were entitled to immunity from liability.  Gross appealed and the federal appellate court certified several questions of Connecticut law to the Connecticut Supreme Court, mostly dealing with the immunity questions.

Well, how did the Connecticut Supreme Court respond? (more…)

April 9th, 2012

I don’t want to get into a lot of detail about The Florida Bar v. Doherty, a recent attorney disciplinary proceeding from Florida, but just want to raise it as a cautionary tale for those practitioners who wear multiple hats for the same client.  You know – those practitioners who act as both estate planner and investment advisor for the same client; those practitioners who act as estate planner for a client and then get named as trustee, executor, etc. in that client’s estate planning documents; those practitioners who act as estate planner and annuity salesperson for the same client; and those practitioners who act as attorney and business partner for the same client. (more…)

April 4th, 2012

Let’s say that you have a will executed in 2005 that provides something like “I give all the residue of my estate, including my homestead, to the Trustee serving under my Irrevocable Trust Agreement dated October 26, 1999, as amended or hereafter amended.”  In other words, you have a trust incorporated into the  will. 

Now, let’s say you want to challenge the validity of that trust.  What should you do when you receive a notice of administration regarding that 2005 will? (more…)