Beyond The Will, Client Compass

Priority of Appointments and Independent Guardians/Conservators: Where the Smiths & Alexanders Went Wrong, and Right

November 19, 2020


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

While the saga of the Smiths & Alexanders might seem too much to be real, the circumstances in which Johnny’s children, Randall and Twyla, sought an independent conservator and guardian for him are not uncommon. Moira, Johnny’s wife and his children’s step-mother (or not, as it turns out), controlled Johnny’s wealth and health in a way that did not sit right with his children. Where one family member improperly handles the care and finances of another, the appropriate remedy is often to seek appointment of a guardian or conservator.

In this case, Randall and Twyla had standing to file petitions for guardianship and conservatorship of Johnny because, as his children, they have an interest in his welfare, estate, and/or affairs. The statutory definition for an “interested person” who may file such petitions, provided in Massachusetts General Laws, Chapter 190B, § 5-404, is deliberately broad and can include friends, family, romantic partners, and various agencies.

While there is a broad range of petitioners who may apply, priority as to who is appointed may be better defined. A valid, executed power of attorney or health care proxy may include a nomination giving the holder of that power priority to be appointed as conservator or guardian. (Note: there are separate rules for priority of appointment for guardianship of a minor.) It is also possible for a parent or spouse to nominate a guardian for their child or incapacitated spouse by Will or other writing.

Here, Johnny and Moira’s unexecuted powers of attorney, if they included such nominations, would not be sufficient to establish priority (although counsel may argue that even unexecuted, these documents reflect their intentions). Had those documents been executed, Moira would have benefitted from the presumption that she should be appointed if nominated; and Randall and Twyla would have the burden to prove that she was unqualified to serve or should not be appointed for some other good cause.

Instead, absent a formal nomination, the Court would consider other individuals with statutory priority. Those priorities differ, in some ways, for guardianship and conservatorship, but ultimately consist of persons formally nominated in a writing (with certain requirements), spouses, family members, and any person the Court deems appropriate. The Court may also, and often will, consider the stated preference of the protected person if they have capacity to state a preference.

In the case of the Smiths & Alexanders, Moira, although not a spouse nor a family member, would be a potential candidate for appointment (and could petition herself for appointment) based on her relationship with Johnny. However, a serious conflict between multiple interested parties – i.e., a romantic partner or spouse and a protected person’s children, like the one here — will often (but not always) end with the appointment of an independent conservator and/or independent guardian. These are almost always professionals, as opposed to “neutral” family members. Either or both of the parties may suggest individuals to be appointed as independent guardian/conservator, or they will be drawn off “the list” of available attorneys kept by each Probate and Family Court.

However, not every dispute rises to the level that an independent conservator and/or independent guardian is necessary. Assessing whether a family dispute rises to that level requires experience, careful consideration of the facts and applicable law. In most cases, it is worth making that assessment and discussing neutral appointments with your counsel before filing, since the petition will identify who the petitioner wants to be appointed. That nomination can include specific interested persons, specific independent persons, unidentified “some suitable person”, or an unidentified but independent guardian or conservator. While it might seem self-defeating, there are a host of strategic reasons why an independent fiduciary might be advantageous.

In Randall and Twyla’s case, their petition included requests for an independent conservator and independent guardian – a decision that may have been strategically advantageous by giving them the opportunity to suggest who the independent fiduciaries should be (and thereby suggest known, trustworthy professionals) while also signaling to the Court that they are not interested in Johnny’s money or control over his life (and therefore are not the “bad guys”), unlike Moira. It also helps ensure that Johnny’s estate will be managed professionally by someone with experience in handling significant assets. This good impression and focus on Johnny’s protection may pay dividends down the road for Randall and Twyla.

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