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.

July 11th, 2012

In fiduciary litigation cases, it’s common to encounter courts and practitioners who don’t really appreciate the difference between a litigant’s individual capacity and that litigant’s representative, fiduciary capacity.  In other words, the two capacities tend to get conflated.

In Beekhuis v. Morris, a Florida appellate court reminds us that there really is a difference between someone acting individually and that same person acting in a representative capacity as a fiduciary. (more…)

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 17th, 2012

We’ve previously looked at statutes of limitation in the context of fiduciary litigation.   As a quick refresher, a lawsuit has to be commenced within so many years after the complained of act occurred or you can’t pursue the lawsuit.  There are exceptions to this rule which allow a statute of limitation to be extended, or “tolled.”

Tolling of statutes of limitations can come up with greater frequency in the fiduciary litigation context because certain events like incapacity can toll a statute of limitations.

In Estate of Formyduval, the North Carolina Court of Appeals examined, under North Carolina law, the interplay between incapacity, death, and the statute of limitations for an action to set aside deeds on the basis of fraud and/or undue influence. 

Let’s take a quick look at the background of this lawsuit over the estate of Naomi L. Formyduval, and remember that the dates are important. (more…)

January 10th, 2012

Trust litigation often involves many components.  If there is a dispute with a trustee, the plaintiffs often request removal of the trustee, an accounting, and damages.  As a practical matter, courts will often deal with the various requests for relief in a piecemeal fashion.  Thus, a court may enter an order removing a trustee and appointing a successor trustee many months before actually reaching a decision whether the trustee did, in fact, breach its fiduciary duties.

When these matters are addressed through separate orders, the question often becomes “can I appeal and when?”  In Guardianship & Protective Services, Inc. v. Setinsek, an Ohio Court of Appeals addressed that question under Ohio law. (more…)

January 3rd, 2012

There’s a well-respected, senior attorney I know who tells all beginning lawyers that, if you have a filing deadline, file 5 days early and you’ll never have to worry about cutting it too close to the deadline.  As a practical matter, that may not always work, but that’s still good advice.

If that ‘rule’ was followed in Rothman-Browning v. Marshall, it may have avoided an appeal from an order by a Florida trial court prematurely approving a guardianship plan. (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…)

December 14th, 2011

In a number of jurisdictions, there may be a presumption or inference of undue influence when a testator gives all or part of his or her estate to a person who is not the “natural object of the decedent’s bounty.”

In other words, a son or daughter is usually considered the natural object of a testator’s bounty so that the testator can give all of his or her estate to one child to the exclusion of the others without creating a presumption of undue influence on that basis alone.  Conversely, if a testator gives all of his or her estate to a friend or ‘stranger’ to the exclusion of his or her children, then that friend is usually not the natural object of the testator’s bounty and that may create a presumption of undue influence.

With that background, that’s why it is unusual that a trial court in Massachusetts recently determined that a testator’s friend and not the testator’s adopted daughter was the natural object of the testator’s bounty.  The Appeals Court of Massachusetts affirmed this part of the trial court’s decision in Purcell v. Landers, but reversed the trial court on failing to require trial testimony of the witnesses who attested to the will.

So, how does a friend become the natural object of a testator’s bounty while a daughter loses that status?  Threaten to set the testator’s house on fire with him in it. (more…)