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Conservator Did Not Have A Conflict Of Interest

April 15, 2014

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Often family members receive priority when it comes to being appointed conservator of an incapacitated adult.  If a conservator – who has control over the finances of the ward – is also named as a beneficiary in the ward’s will or recipient of some other of the ward’s assets upon death, the argument goes that the conservator is incentivized to not spend funds in support of the ward.  Is this a conflict of interest that precludes appointment of such a conservator or warrants removal?

In In re Estate of Lorraine McKitrick (via FindLaw), the Georgia Court of Appeals affirmed a probate court’s order that it did not.  In this case, the conservator was the ward’s son and had a potential death benefit in the ward’s accounts.  The ward had complained that the conservator refused to

Guardianship for Alcoholics

Guardianship for Alcoholics

March 3, 2014

Authored by: Luke Lantta

Originally posted on bryancavefiduciarylitigation.com

Knowing when to initiate guardianship proceedings for a loved one can be a difficult and personal decision.  When it comes to substance abuse, those proceedings can enter a grayer area than proceedings involving dementia, injury, or developmental disability.  At what point is an addict or alcoholic incapacitated?  What happens during moments of sobriety?  In In re Guardianship of Esterly (unpublished), the Court of Appeals of Minnesota dealt with some of these difficult questions.

Guardianships For Alcoholics

February 25, 2014

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Guardianships For Alcoholics

February 25, 2014

Authored by: Luke Lantta

Knowing when to initiate guardianship proceedings for a loved one can be a difficult and personal decision.  When it comes to substance abuse, those proceedings can enter a grayer area than proceedings involving dementia, injury, or developmental disability.  At what point is an addict or alcoholic incapacitated?  What happens during moments of sobriety?  In In re Guardianship of Esterly (unpublished), the Court of Appeals of Minnesota dealt with some of these difficult questions.

Indiana Guardians Not Permitted To File Petitions For Dissolution Of Marriage

November 7, 2013

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In contrast to a case from Michigan we looked at earlier this year, in McGee v. McGee, the Indiana Court of Appeals has reaffirmed that Indiana statutes do not authorize a guardian to file a petition for dissolution of marriage on behalf of his or her ward.

While Indiana statutes allow the guardian of an incapacitated person to take action and to make decisions for the benefit of an incapacitated person, the filing of a petition for dissolution of marriage on behalf of an incapacitated person is not one of those actions or decisions.

 

Georgia Appellate Court Clarifies What It Takes For An Emergency Guardianship

June 11, 2013

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Few appellate opinions give us a window into contested guardianship proceedings.  Fewer still give us insight into what it takes to obtain an emergency guardianship.  In In the Interest of Farr, the Georgia Court of Appeals let us know that the “emergency” needed for an emergency guardianship needs to be an actual emergency.

St. Joseph’s Hospital in Savannah wanted an emergency guardian for one of its patients, Claudine Tapley Farr.  The hospital wanted an emergency guardian appointed to facilitate the patient’s discharge from the hospital.  That wasn’t an emergency.

Michigan Allows Guardians And Conservators To File Divorce Complaints On Behalf Of Their Wards

May 7, 2013

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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.

There Is A Difference Between Individual And Representative Capacities

July 11, 2012

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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.

Florida’s Incapacity Examining Committee Withstands Another Constitutional Challenge

June 6, 2012

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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.

Georgia Conservator’s Final Accounting Approved After Trial

April 18, 2012

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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

Connecticut Supreme Court Tackles Judicial Immunity For Conservators

April 16, 2012

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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

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