Beyond The Will, Client Compass

Financial Exploitation and the Authority of a Conservator

January 28, 2021


To best enjoy this post, please be sure to first read A Family History of the Smiths & Alexanders.

In this last discussion of the Smith and Alexander families, we examine financial exploitation, its impact on suitability in appointing a conservator, and steps that a conservator can take if there is evidence of prior financial exploitation. As background, Johnny developed Alzheimer’s, and Moira cared for Johnny at their home, with the help of an in-home nurse. When Randall and Twyla were concerned with how Moira was spending their father’s money, they appropriately filed for a conservatorship. Randall and Twyla asked for an independent conservator to be appointed over Johnny, to which the court agreed, despite Moira’s objection.

Moira likely objected because she wanted to be appointed as conservator over Johnny. Remember that Johnny and Moira never signed the health care proxies and durable power of attorneys prepared by Attorney Mullens (they did sign their Wills and Trust). Johnny’s health care proxy and durable power of attorney named Moira as the agent, followed by Randall. Had Johnny signed his durable power of attorney, Moira would have had top priority for consideration for the appointment as conservator under the governing statute. Otherwise, she lacks any priority for the appointment. Moira might still argue that the unsigned durable power of attorney evidences Johnny’s intent for her to serve as conservator. That would be a tough argument, though, given that Johnny never actually signed the durable power of attorney, and he was still thinking about whether he wanted to name one of his children to serve as co-attorney-in-fact with Moira.

Importantly, the court would likely not appoint Moira as conservator for Johnny because she is unsuitable to serve in such a fiduciary position. Based on the facts, it seems like the conservator need arose out of Moira’s lavish spending of Johnny’s money. The governing statute ensures that lack of qualification or lack of good cause overrides any person’s priority for the appointment. Here, with Moira’s history of using Johnny’s assets, there is a solid argument that she should not be appointed.

With a neutral conservator in place, the conservator is protecting Johnny from future exploitation and standing in Johnny’s shoes to pursue any necessary investigation and/or claim against Moira or any other wrongdoer. A conservator is explicitly empowered to “commence, prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets,” pursuant to M.G.L. c. 190B, § 5-423(c)(26). Once appointed, the conservator likely learned from Randall and Twyla of their concerns about Moira’s spending. Then the conservator has the power to review bank account statements, hire counsel, and file any claim to recover any assets if necessary. As shown by Moira, often, the fight over a person or estate stems from wanting to remain in control and to limit someone’s own potential liability for bad acts.

If you have concerns about the financial exploitation of a loved one, you should consult with a skilled attorney who specializes in this area of the law.

Until next time!


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