A Strong Offense
A Stronger Defense
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.
The executor had claimed that McQuien had spent too much on Haring’s care. Yet McQuien actually spent less money than it would have cost to care for Haring in a licensed facility, and the money paid to the sitter was reasonable ($8.50 per hour).
Furthermore, no one reviewed or objected to McQuien’s annual conservatorship returns. While the annual returns may have been “imperfect,” they reflected McQuien’s level of sophistication rather than intentional dishonesty. McQuien was permitted to submit amended returns, which were accepted by the court.
Those annual reports get filed for a reason, and, if you’re the recipient of one, you best carefully review it and decide whether to object at that time or you may end up losing your chance to object at some later date.