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…)

November 11th, 2011

When individual fiduciaries are found to have breached their fiduciary duties, they are often found to have received some help.  Many times a spouse, lover, or business partner is seen lurking in the wings, aiding and abetting the breach of fiduciary duty.  From an aggrieved beneficiary’s or successor fiduciary’s perspective, it’s imperative to get that joint-wrongdoer brought into court, where he or she can be held to account for the wrongdoing and – if there’s a recovery to be had – reimburse the estate or trust for damages.  In other words, a person cannot be held to account unless he or she is actually a party to the litigation.

In Estate of Brown, the Superior Court of Pennsylvania, decided that the Court of Common Pleas of Delaware County exceeded its authority when it imposed a surcharge on Kenneth Pearl, who was not a party to the underlying proceeding. (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…)

October 17th, 2011

In a probate court case, attorney Richard S. Weiss was sanctioned by the court.  Weiss was required to resign his appointment as guardian for an elderly woman, required to forgo fees that he claimed to have earned, and required to pay certain sums to the guardianship estate.  Weiss had probably hoped that was the end of the fallout from the conduct that led to the sanctions.  It was not.  The Massachusetts Board of Bar Overseers had not yet weighed in . . . . (more…)

October 5th, 2011

No matter how many times it comes up, plaintiffs constantly seem to forget that when a lawsuit seeks some relief regarding a trust, then all beneficiaries of the trust must be joined as parties.  In these cases, one or more trust beneficiaries usually get omitted by a plaintiff’s attorney trying to seek what they perceive to be a more advantageous venue or jurisdiction (for example, state court versus federal court).  Those forum shopping tricks usually end up failing because, like the United States District Court for the Middle District of Florida recently reminded us in Butler v. Saunders, when a plaintiff seeks relief regarding a trust, all trust beneficiaries must be joined as parties.

In Butler v. Saunders, however, the federal court encountered a different scenario: a trust beneficiary had been named as a defendant in a lawsuit, but several of his co-defendants argued that he was not a proper defendant. (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…)