May 7th, 2013

Not surprisingly, in Estate of Burnett, the Michigan Court of Appeals reaffirmed that a guardian or conservator can file a complaint for divorce on behalf of the incapacitated spouse over whom the guardianship or conservatorship is placed.

For the family law readers out there, the other interesting question answered by the appellate court was that the trial court had jurisdiction to enter a judgment of divorce between married persons of the same sex even though Michigan’s state constitution prohibits recognition of a marriage entered into by two individuals of the same sex.  Click on the link above for more details.

June 6th, 2012

If you’re not familiar with Florida Statute 744.331, there’s been some historical controversy about the role of the ‘examining committee’ established under the statute.  For our purposes, in short, after a petition to determine incapacity is filed, an examining committee of three people is formed to make a determination of whether the alleged incapacitated person is actually incapacitated. 

A trial court in Florida recently found the statute to be unconstitutional.  Let’s see why. (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…)

February 27th, 2012

Guardianship and conservatorship disputes involve extremely sensitive issues and personal information about the ward.  That’s probably why in Georgia, at least, there isn’t an overwhelming amount of appellate authority in this area.  At the probate court level, much of the information is kept under seal.  Once it goes up on appeal, however, that which was once private gets a very public airing.

In a rare appeal of the appointment of a conservator, the Georgia Court of Appeals gave us guidance on the type of circumstances that justify appointment of a conservator.  In In re Cochran, the appellate court considered the case of Sara Cochran who, at 79 years of age, was a serial victim of fraudulent lottery schemes. (more…)

December 21st, 2011

Guardians and conservators don’t get appointed because things are going swimmingly for the ward.  In a good many of these cases, a guardian and conservator are appointed because there has been some type of financial exploitation of the ward.  Once the ward has been protected going forward, the question turns to how to try to recover what the ward has lost from the exploitation and who has standing to bring the claims on behalf of the ward?

When it comes to a ward’s financial losses, in Kawecki v. Saas, the Appellate Court of Connecticut clarified that it is the conservator of the estate – and not the conservator of the person (similar to a guardian in other jurisdictions) – who has standing to bring a lawsuit to recover the ward’s financial losses. (more…)

November 9th, 2011

On November 3, 2011, the Florida Supreme Court approved the Appellate Court Rules Committee’s proposed rule changes to the Florida Rules of Appellate Procedure.  Among the changes to the Florida Rules of Appellate Procedure is the addition of a new Rule 9.170, which governs appeal proceedings in probate and guardianship cases.

Because probate court cases often involve a number of different issues that are akin to a bunch of separate lawsuits all under one probate umbrella, the new rule helps clear up the question of what types of orders are appealable orders. (more…)

September 28th, 2011

Iowa’s Code contains strict limitations on what acts a conservator can take without prior court approval.  For example, Iowa Code section 633.647 provides that “[c]onservators shall have the following powers subject to the approval of the court after hearing on such notice, if any, as the court may prescribe: . . . [t]o invest the funds belonging to the ward.”  (Emphasis added.)

On their face, these limitations seem like a lot of unnecessary hassle, increase the fees and expenses of conservatorships, and potentially cause the conservatorship estate to miss out on financial opportunities.  On the other hand, the statutory limitations would also seem to protect conservators who get the court’s blessing before taking any acts that might jeopardize the ward’s assets.

In In the Matter of the Conservatorship of Rose V. Alessio, the Iowa Supreme Court answered the question of what happens to a conservator who fails to get court approval before investing a ward’s property.  The answer appears to be that prior approval doesn’t really matter.  Conservator liability will rest on whether there is a showing that there was otherwise a breach of fiduciary duty owed by the conservator to the ward. (more…)

September 8th, 2011

In Foster v. Professional Guardian Services Corporation, the Alaska Supreme Court determined that a court-appointed conservator breached its fiduciary duties through a number of acts and a failure to timely act.  Even though the conservator prevailed on a majority of the claims brought against it,  and thus prevailed in the “global” scheme of the litigation, the Alaska Supreme Court determined that the conservator could not have its attorney’s fees paid from the ward’s estate for those claims on which it lost.

In reaching its decision, the Alaska Supreme Court suggested that there is no such thing as a de minimis breach of fiduciary duty. (more…)

August 29th, 2011

The class of people who can be appointed guardian or who are statutorily required to receive notice of a guardianship proceeding may be the only people who can later challenge the manner in which a guardian was appointed.  Seems pretty intuitive.  But what about a situation where two parties are divorced and one ex-spouse has a guardian appointed to go after the other ex-spouse?  And the ex-spouse getting sued claims that the guardianship proceeding was a fraud just to go after him?  In fact, the ex-spouse claims, his ex isn’t even incapacitated at all.

In Cacioppo v. Emolo, the New Jersey court of appeals was faced with that question: who has standing to challenge the appointment of a guardian? (more…)