FRAUD - suing personal representative - Texas Probate, Estate and Trust Administration litigation guide

Texas Probate, Estate and Trust Administration
Copyright 2005, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
PART 5 CONTESTS AND LITIGATION
CHAPTER 47 FIDUCIARY LITIGATION

3-47 Texas Probate, Estate and Trust Administration § 47.02

§ 47.02 Fraud

A person suing a personal representative for breach of a fiduciary duty may also have a cause of action for common-law fraud.

The elements of a fraud cause of action are
(1) a material misrepresentation
(2) that was false and
(3) that was either known to be false when made or was asserted without knowledge of the truth,
(4) that was intended to be acted on,
(5) that was relied on, and
(6) that caused injury.n1

Although statements of law, statements of opinion, and predictions as to future events are not generally actionable as fraudulent, they may be actionable if made by a personal representative to an estate beneficiary because of the fiduciary nature of the relationship or the representative's possession of superior information.n2 Similarly, although a mere failure to disclose information does not generally amount to fraud,n3 a personal representative's failure to disclose facts will constitute fraud if the facts are among those the representative has a fiduciary duty to disclose.n4
A plaintiff who prevails on a fraud cause of action is entitled to actual damages and may be entitled to exemplary damages. Actual damages are traditionally measured by the ''out-of-pocket'' method (the difference between the value of the thing given and the value of the thing obtained).n5 Special or consequential damages that proximately resulted from the fraud may also be recovered,n6 as may damages for mental anguish.n7 Exemplary damages are recoverable in some cases.n8 For a discussion of the situations that may justify an award of exemplary damages, see § 47.01[4][c].
The statute of limitation for a fraud cause of action is four years.n9
For a full discussion of fraud causes of action, see TEXAS LITIGATION GUIDE, ch. 336, Fraud , and TEXAS TORTS AND REMEDIES, ch. 44, Fraud and Misrepresentation.
Legal Topics:

For related research and practice materials, see the following legal topics:
Estate, Gift & Trust LawProbateProcedures in ProbateGovernmentsLegislationStatutes of LimitationsTime
LimitationsEstate, Gift & Trust LawEstate AdministrationGeneral OverviewTortsBusiness TortsFraud &
MisrepresentationNondisclosureElementsEstate, Gift & Trust LawProbatePersonal RepresentativesClaims By &
Against


FOOTNOTES:
(n1)Footnote 1. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990) , cert. denied , 498 U.S. 1048, 112 L. Ed. 2d 775 (1991) .
(n2)Footnote 2. See Moreau v. Oppenheim, 663 F.2d 1300, 1310 (5th Cir. [Tex.] 1981), cert. denied, 458 U.S.
Page 200 3-47 Texas Probate, Estate and Trust Administration § 47.02 1891 Tex. LEXIS 1161, ***16
1107 (1982) -president of corporation that managed joint venture liable to joint venturers and shareholders based on misrepresentation of law regarding business and corporate powers; Sawyer v. Pierce, 580 S.W.2d 117-126 (Civ. App.-Corpus Christi 1979, ref. n.r.e.)-buyers entitled to rescind sale of trailer park based on sellers' statement that there was room for 30 trailers in park, because sellers knew and failed to mention that county regulations permitted only 15 spaces to be rented on property; Wright v. Carpenter, 579 S.W.2d 575, 580 (Civ. App.-Corpus Christi 1979, ref. n.r.e.)­sellers of house liable based on prediction as to how long roof would last, because they had superior knowledge of roof's condition; Squyres v. Christian, 242 S.W.2d 786-790 (Civ. App.-Texarkana 1951, dis.)-accountant liable based on statement of opinion to clients with whom accountant had fiduciary relationship.
(n3)Footnote 3. See Moore & Moore Drilling Company v. White, 14 O.&G.R. 847, 345 S.W.2d 550, 555 (Civ. App.-Dallas 1961, ref. n.r.e.) .
(n4)Footnote 4. See Anderson v. Anderson, 620 S.W.2d 815, 819 (Civ. App.-Tyler 1981, no writ)-granddaughter to whom property was deeded by grandmother and who occupied position of trust and confidence in relationship with grandmother had duty to tell grandmother that representation in deed that granddaughter would take care of grandmother for rest of her life was false; § 47.01[3][c]-fiduciary duty of disclosure.
(n5)Footnote 5. See Sobel v. Jenkins, 15 Tex. Sup. Ct. J. 241, 477 S.W.2d 863, 868 (Tex. 1972) .
(n6)Footnote 6. See Wright v. Carpenter, 579 S.W.2d 575, 578 (Civ. App.-Corpus Christi 1979, ref. n.r.e.) .
(n7)Footnote 7. Kneip v. Unitedbank-Victoria, 734 S.W.2d 130, 136 (Tex. App.-Corpus Christi 1987, no writ) .
(n8)Footnote 8. See Trenholm v. Ratcliff, 646 S.W.2d 927, 933 (Tex. 1983)-finding of intent to harm or conscious indifference to rights of others sufficient to uphold award of exemplary damages.
(n9)Footnote 9. Williams v. Khalaf, 34 Tex. Sup. Ct. J. 133, 802 S.W.2d 651, 658 (Tex. 1990) ; see C.P.R.C. § 16.004(a)(3)-four-year statute of limitation for action on debt; C.P.R.C. § 16.051-four-year residual statute of limitation.
56 of 100 DOCUMENTS
Texas Probate, Estate and Trust Administration
Copyright 2005, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
PART 4 ADMINISTRATIVE MATTERS
CHAPTER 32 CREDITORS' CLAIMS
B NOTICE TO CREDITORS AND FILING OF CLAIMS

2-32 Texas Probate, Estate and Trust Administration § 32.16
§ 32.16 Exceptions to Claim Requirement
[1] In General
[a] Effect of Exemption on Limitations Period
Probate Code Section 298 requires presentment of claims ''for money,'' which has been held to include all existing debts of an estate.n1 However, it has been held that contingent or unliquidated claims for money, such as those that require the intervention of a jury to ascertain the amount, need not be presented to the representative as a prerequisite to suit on those claims.n2 Even if a claim is specifically exempted from the presentment requirement, the creditor is free to submit it to the representative in authenticated form. However, before doing so, the creditor should be aware that an unnecessary presentment may provide some basis for the representative to argue that the limitations period and authentication requirements of Section 298 and 301 apply to the claim.n3
The question of whether an unnecessary presentment will subject the claimant to the requirement that suit be instituted within 90 days after the representative's rejection of the claim has not been clearly resolved by the courts.n4 Prior to the adoption of the Probate Code, the statute governing suits on rejected claims referred only to ''claims for money.'' Accordingly, it was held that an unnecessary presentment did not bind the claimant to the 90-day limitations period.n5
Under the present wording of Probate Code Section 313, suits must be brought within 90 days following the rejection of a ''claim.''n6 The phrase ''for money'' no longer appears. Although it could be argued that the change in statutory wording obligates any one who presents a claim that is rejected to sue within 90 days, the weight of authority indicates a trend against the imposition of the 90-day limitations period to unnecessary presentments. For example, in Lusk v. Mintz, n7 a creditor holding a vendor's lien on real property filed a claim against the guardian and estate of an incompetent as a preferred debt and lien against the land.n8 Although the claim was rejected and suit was filed after the applicable limitations period,n9 the court of appeals held that since the unnecessary presentation and rejection of a claim does not invoke the limitations provision of Section 313 and since the creditor's claim was based on superior legal title and thus did not need to be presented, compliance with the limitation provision was unnecessary.n10 Similarly, in Ullrich v. Estate of Anderson,n11 a court of appeals held that the 90-day limitations period did not apply to a claim by an accountant against an estate, even though the claim had originally been presented to the estate, because the claim was one to which the procedures for presenting claims did not apply.n12 However, in Andrews v. Aldine Independent School District,n12.1 the school district, held a governmental taxing agency by the appellate court, unnecessarily filed a claim with the dependent representative of an estate (rather than simply seek foreclosure) and, when no action was taken within 30 days by the representative, found its claim barred ninety days thereafter. The court also held that the school district's claims for payment of delinquent ad valorem taxes was a claim for money, not a claim in rem.
Page 202 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
If a claim is one that is not required to be presented, such as an unliquidated claim,n13 a contingent claim,n14 or one against the representative arising after the issuance of letters,n15 it must be established by judgment.n16 The claimant must bring suit against the representative in his or her capacity as representative.n17 The suit must be filed before the applicable statute of limitation has barred its prosecution. However, death tolls the limitations period for 12 months or until qualification of a personal representative of the estate, whichever occurs first.n18
[b] Jurisdiction
If an estate is being administered in, or letters testamentary were issued from, a statutory probate court, the suit must be brought in that court rather than a district court, even though the jurisdiction of the two courts is concurrent.n19 If the probate matter was initiated in a court other than a statutory probate court,n20 the claimant may bring suit in that court regardless of the amount in controversy.n21 However, constitutional county courts and county courts at law, when exercising probate jurisdiction, do not have exclusive jurisdiction over suits to establish claims against the estate; the claimant has a choice of forum and may sue in a district or county-level court, depending on the amount in controversy.n22
If the claimant reduces an unliquidated claim to a judgment for money, the judgment must state that it is to be paid in due course of administration.n23 If judgment is rendered by a court other than the one in which the administration is pending, the court should certify the judgment to the court having probate jurisdiction over the estate.n24 The court that exercises probate jurisdiction over the estate would then be empowered to enforce the judgment,n25 which would include (1) entering the claim on the claim docket;n26(2) classifying the claim;n27 and (3) subject to the availability of funds, ensuring payment by the representative.n28
If a claim is established by judgment against an independent executor or administrator, the judgment creditor may pursue execution of the judgment against the decedent's property held by the representative.n29 However, the representative may enjoin execution if the judgment creditor, due to the insolvency of the estate, would gain an unfair advantage over creditors of the same or higher classification.n30
For a discussion of the effect on probate jurisdiction of a claim other than a ''claim for money,'' see [4], below.
[2] Unliquidated Claims
Claims must be presented only if they are sufficiently fixed and definite as to be susceptible to verification by affidavit.n31 Presentment to the personal representative is not required when the claim against the decedent is for uncertain or unliquidated damages.n32
In light of the requirement that the amount of a claim be fixed with some certainty, several classes of claims have been permitted to be established by suit without prior presentment. For example, tort claims do not require presentment.n33 Likewise, damages resulting from the breach of a contract to devise property do not constitute a ''claim for money'' and need not be presented prior to suit.n34 Also, unliquidated damages claims based on warranties made by the deceased need not be presented under Section 298.n35
The difficulty in applying the rule exempting unliquidated claims from the presentment requirement appears primarily in contract cases. The Texas Supreme Court has held that presentment is required if the claim may be reduced to a definite sum on proper data, as opposed to one in which the jury must determine the amount.n36 In Anderson, the Texas Supreme Court held that a claim for services rendered by a physician pursuant to an express or implied contract was a claim for money that must be presented to the representative. The Texas Supreme Court noted that similar claims, such as a those for attorney's services rendered to the decedent without prior agreement as to the amount and any other claims that may be reduced to a specific sum at the time of presentation, must be presented.n37 On the other hand, the court
Page 203 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
noted that a claim that cannot be verified with a reasonable degree of certainty, such as a mere demand for unliquidated damages, damages for breach of contract, for trespass, or for wrongful levy of attachment, need not be presented prior to suit.n38
Decisions involving claims for personal services rendered to a decedent have reached inconsistent results. Some have held that a claim for the care of a decedent must be presented, regardless of whether or not the person providing the care was a professional.n39 One court held that an attorney's claim based on services rendered during the decedent's lifetime could properly have been presented to the representative.n41-42
If the claim is one that could be brought under Rule 185 of the Texas Rules of Civil Procedure, governing suits on accounts,n43 it would be prudent practice also to comply with the requirements of Probate Code Section 298 by presenting the claim to the personal representative.n44 If the claim is rejected, suit on that rejected claim must be filed within 90 days.n45 If a creditor is able to invoke an alternative theory of recovery, his or her claim will still be deemed one ''for money'' that requires presentment since the primary cause of action fixes the status of the demand.n46
[3] Contingent Claims
When a decedent's liability is contingent on the liability of another person, the person to whom the liability is owed need not present his or her claim pursuant to Probate Code Section 298.n47 This exemption from the presentation requirement was developed in cases involving conditional guarantors who could not be sued without the joinder of the principal obligor.n48 If the claimant were required to proceed to judgment against the primary obligor and then present an unsatisfied judgment to the representative of the guarantor's estate, numerous suits and needless delay would result. Thus, the payee is allowed to proceed against the primary obligor and the representative of a deceased guarantor in a court having subject matter jurisdiction of the obligation without first presenting the claim to the representative.n49 When the primary obligor is insolvent, the exemption does not apply and a creditor must present the claim to the representative and follow the procedures set forth in the Probate Code.n50
Although the decisions exempting contingent claims from the presentation requirement have been based on the fact that the guarantor could not be sued without the joinder of the principal, the joinder statutes provide for exceptions to that general rule.n51 A party who is not primarily liable on an instrument may be sued without joinder of the principal obligor when the principal obligor is (1) notoriously insolvent, (2) dead, (3) not a resident of Texas, (4) outside the reach of ordinary process of law, or (5) resident at a location that is unknown and cannot be ascertained by the use of reasonable diligence.n52
If the decedent executed an absolute and unconditional guaranty of payment, the claim against the estate is not contingent and must be presented to the representative for payment and, if rejected, sued on within 90 days after rejection.n53 The joinder statute applies only if the surety or guarantor is not primarily liable.n54 If the guarantor or surety guarantees payment of the obligation in a manner so as to become an absolute guarantor and thus primarily obligated to pay, the holder of the indebtedness may enforce payment against the guarantor without first proceeding against, joining, or showing an excuse for nonjoinder of the maker.n55
Other types of claims may be deemed contingent and not within the presentment requirement. For example, in one case it was held that a claim for indemnity resulting from a breach of warranty by deed was contingent on the warrantee's eviction by one claiming superior title to the property covered by the deed. Thus, the representative of the warrantor's estate could be joined in suit without prior presentation and rejection of the claim.n56
[4] Claims for Property
Since the statutes governing the presentment of claims against a decedent's estate apply to ''claims for money,'' they are generally deemed inapplicable to causes of action for title to, or interests in, real or personal property.n57 For example,
Page 204 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
the Probate Code presentment requirements do not apply to (1) actions for specific performance of a contract to convey property or (2) actions to impose a resulting trust on realty held for the claimant by the decedent.n58
When a claim for property is made against an estate, a court exercising probate jurisdiction will not be deprived of jurisdiction merely because that claim is not a ''claim for money'' governed by the Probate Code.n59 For example, an assertion that a claimant is the true or beneficial owner of specific property included in the inventory of an estate would fall within the probate court's jurisdiction under Probate Code Section 5A as a matter incident to an estate, as either an action for trial of title to land, an action for trial of the right of property, or a matter relating to the settlement, partition, and distribution of estates.n60
One court of appeals has held that a district court had no jurisdiction to hear a suit for equitable title to real property held by the administrator of a decedent's estate since the claim was not one for money and could not form basis for suit on rejected claim.n61 However, that court of appeals did not discuss concurrent jurisdiction under Probate Code Section 5A.n62
[5] Claims Arising After Issuance of Letters
[a] Types of Claims Exempt From Presentment Requirement
Probate Code Section 317(c) exempts from the presentment requirement of Probate Code Section 298 any claim that accrues after the issuance of letters and that is based on some matter for which the representative of the estate contracted.n63 When a representative contracts for anything necessary to an administration of the estate, he or she does so as an agent for the estate and, in that capacity, the representative is totally free to contract for necessary services.n64 Most claims arising after the issuance of letters are for expenses incurred and contracted for by the estate's representative, such as claims for attorney's and accountant's fees.n65 However, Section 317 has been applied to exempt a claim for rentals collected by the representative from property jointly owned by the claimant and the decedent's estate from the presentment requirement of Section 298.n66
For a general discussion of services contracted for in the course of administration, see Ch. 30, Estate Administration.
[b] Satisfaction of Claims
There are two ways to obtain payment of expenses such as attorney's fees for services rendered to a decedent's estate. First, the attorney may follow the general presentment procedures of the Probate Code.n67 Alternatively, the personal representative may include a request for reimbursement in his or her final account.n68
Ordinarily, the person contracting with a representative may proceed against the estate, against the representative in his or her individual capacity, or both. However, a contractual provision limiting the creditor's recourse to the estate will be given effect.n69 If the creditor elects to proceed against the estate, he or she may follow several different procedures, the selection of which will depend on the representative's opinion of the claim. He or she may treat the claim as an administrative expense in a definite sum and file a verified claim for the amount due. That claim will be acted on by the court in the same manner as other claims against the estate.n70 However, a court's action on an expense claim, unlike other claims, may not be a final judgment.n71 The court may retain the power to review the allowance of the expense during its examination of the representative's final account.n72 Alternatively, the representative may include the claim in the final account and seek approval and authority for payment in the order approving that account.n73 In either event, the representative should not pay the claim until it has been approved by the court or established by judgment.n74
Generally, the representative may proceed directly against the estate for the reimbursement of amounts for which he or she contracts.n75 Moreover, if a contract for services does not limit the creditor's right of recovery to the estate, the claimant may proceed against the representative individually.n76 A representative against whom a creditor obtains a
Page 205 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
judgment individually may seek reimbursement for the judgment as an expense of administration under Probate Code Sections 242-244.n77 However, the amount of the reimbursement will not necessarily be measured by the amount agreed on by the representative and creditor in their contract. The representative may bind the estate only for the cost of reasonable and necessary services.n78 Accordingly, the representative may be held personally liable for amounts in excess of those seemed to be reasonable and necessary.n79
The claimant may file suit in any court having jurisdiction over the amount in controversy. However, if the matter is pending in a statutory probate court, the claim should be filed in that court.n80
[6] Claims by Personal Representative
Representatives of decedents' estates who are also creditors of the estates are exempt from the presentment requirements of Probate Code Section 298.n81 If a representative is also a creditor, he or she must file a verified claim with the clerk of the court for entry on the claim docket.n82 The representative must file the claim within six months after he or she qualifies as representative or be barred.n83 However, if the representative is a secured creditor, the failure to file the claim within six months after qualifying will result in treatment of the claim as a preferred lien against property rather than as a bar to the claim.n84
After the representative's claim is entered on the claim docket, it will be acted on by the court in the same manner as other claims.n85 Any interested person who is dissatisfied by the order of the court approving or disapproving the representative's claim may seek review of the order by appeal to a court of civil appeals.n86
For a further discussion of claims involving representatives, see § 32.15.
[7] Claims by Heirs
Anyone with a claim against an estate in his or her capacity as an heir, devisee, or legatee of that estate is exempt from the presentment requirements of Probate Code Section 298.n87 Heirs are those persons, including the surviving spouse, who are entitled under the statutes of descent and distribution to the estate of a decedent who dies intestate.n88 A legatee is any person entitled under a will to receive any gift or devise of real or personal property.n89
For a discussion of the manner in which devisees and heirs obtain payment of their claims on estate property, see Ch. 11, Intestate Succession; Ch. 30, Estate Administration; Ch. 31, Collection, Management, and Distribution of Assets; and Ch. 40, Will Construction.
[8] Set-Off for Financial Institution
A financial institution in which the decedent has deposits at the time of death and to which the decedent owes money is not required to present its claim to the personal representative. Rather, the institution can simply set off its claim against the money in the decedent's accounts. This is true regardless of whether the institution's claim is mature or whether the estate is solvent.n90
Legal Topics:
For related research and practice materials, see the following legal topics: Estate, Gift & Trust LawEstate AdministrationClaims Against EstatesNotice to CreditorsEstate, Gift & Trust LawEstate AdministrationClaims Against EstatesPriority of ClaimsEstate, Gift & Trust LawEstate AdministrationClaims Against EstatesGeneral OverviewEstate, Gift & Trust LawEstate AdministrationClaims Against EstatesTime LimitationsEstate, Gift & Trust LawProbatePersonal RepresentativesClaims By & Against
FOOTNOTES:
Page 206 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
(n1)Footnote 1. See Prob. C. § 298; Anderson v. First Nat. Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769 (1931) . (n2)Footnote 2. Allen v. Denk, 87 S.W.2d 303, 307 (Civ. App.-Austin 1935, no writ) ; see Cross v. Old Republic
Surety Co., 983 S.W.2d 771 (Tex. App.-San Antonio 1998, no pet. h.) ; [2], [3], below.
(n3)Footnote 3. See Prob. C. §§ 298, 301.
(n4)Footnote 4. See, e.g., Pirkle v. Cassity, 104 F. Supp. 318, 321 (E.D. Tex. 1952)-unnecessary presentation to foreign executor was nullity and did not trigger 90-day statute of limitation for suit on rejected claims; Wilder v. Mossler, 583 S.W.2d 664, 667 (Civ. App.-Houston [1st Dist.] 1979, no writ)-though presentment by tort claimant was unnecessary, joining administrator as party to suit within 90 days after administrator's rejection of tort claim was held sufficient to preserve claim, if necessary that claimant do so.
(n5)Footnote 5. See Goldman v. Ramsay, 62 S.W.2d 176, 178 (Civ. App.-Texarkana 1933, dis.) .
(n6)Footnote 6. Prob. C. § 313; Edwards v. Estate of Jones, 1998 Tex. App. LEXIS 6533 (Tex. App.-Dallas 1998) , rev'd and remanded, 1999 Tex. App. LEXIS 1418 (Tex. App.-Dallas 1999) ; In re Estate of Ayala, 19 S.W.3d 477 (Tex. App.-Corpus Christi [13th Dist.] 2000, n.w.h.)-Section 313 of the Texas Probate Code (requiring claimant to institute
suit on rejected claim within 90 days of such rejection) does not bar claim that was filed prematurely.
(n7)Footnote 7. 625 S.W.2d 774, 775-776 (Tex. App.-Houston [14th Dist.] 1981, no writ) .
(n8)Footnote 8. See Prob. C. § 306; see also §§ 32.13[1][b], 32.52.
(n9)Footnote 9. See Prob. C. § 313.
(n10)Footnote 10. Lusk v. Mintz, 625 S.W.2d 774, 775-776 (Tex. App.-Houston [14th Dist.] 1981, no writ) .
(n11)Footnote 11. 740 S.W.2d 481, 485-486 (Tex. App.-Houston [1st Dist.] 1987, no writ) .
(n12)Footnote 12. 740 S.W.2d at 485-486 ; see also In reEstate of Glenn, 2001 Tex. App. LEXIS 2637 (Tex. App.-Corpus Christi [13th Dist.] 2001, petition for review denied July 26, 2001)(unpublished opinion)-Section 313 of the Texas Probate Code (requiring a claimant to file suit within ninety days of the rejection of his claim) does not apply to an independent executor.
(n13)Footnote 12.1. 116 S.W.3d 407 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) .
(n14)Footnote 13. See [2], below.
(n15)Footnote 14. See [3], below.
(n16)Footnote 15. See [5], below.
(n17)Footnote 16. Dumitrov v. Hitt, 601 S.W.2d 472, 473 (Civ. App.-Houston [14th Dist.] 1980, ref. n.r.e.)-court's
order on claim has effect of full and final judgment.
(n18)Footnote 17. See Price v. Estate of Anderson, 18 Tex. Sup. Ct. J. 322, 522 S.W.2d 690, 691 (Tex. 1975) .
(n19)Footnote 18. See C.P.R.C. Art. 16.062.
(n20)Footnote 19. Prob. C. § 5A(b); Beall v. Cooke, 2001 Tex. App. LEXIS 4141 (Tex. App.-Houston [1st Dist.] 2001, no pet. h.) (not designated for publication)-District court in a county also containing statutory probate courts properly denied appellant's motion to appoint a temporary administrator of her husband's estate because the court lacked jurisdiction over probate matters under section 5 of the Texas Probate Code; but see McPherson v. Judge, 592 S.W.2d
Page 207 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
406, 409 n. 4 (Civ. App.-Amarillo 1979, no writ)-noting argument that deprivation of district court's jurisdiction may violate Texas Constitution.
(n21)Footnote 20. See Prob. C. § 3(ii).
(n22)Footnote 21. See English v. Cobb, 593 S.W.2d 674, 675 (Tex. 1979)-allowing representative's suit in county court at law in which estate pending, even though suit was for recovery of money in excess of that court's jurisdictional limit.
(n23)Footnote 22. See Prob. C. § 5A(a); see also McPherson v. Judge, 592 S.W.2d 406, 409-410 (Civ. App.-Amarillo 1979, no writ) .
(n24)Footnote 23. T.R.C.P. 313.
(n25)Footnote 24. See T.R.C.P. 313; see also Baten v. Thornhill, 145 S.W.2d 608, 610 (Civ. App.-Beaumont 1940, ref.)-certifying judgment as to any deficit on indebtedness guaranteed by decedent.
(n26)Footnote 25. T.R.C.P. 313.
(n27)Footnote 26. See Prob. C. § 14; see also § 32.31.
(n28)Footnote 27. See Prob. C. § 322; see also § 32.41[1][b].
(n29)Footnote 28. See Prob. C. § 320; see also Manning v. Mayes, 79 Tex. 653, 15 S.W. 638, 638 (1891)­judgment for costs certified to county court for classification; § 32.43.
(n30)Footnote 29. Prob. C. § 147; T.R.C.P. 313.
(n31)Footnote 30. See Farmers' & Merchants' Nat'l Bank v. Bell, 71 S.W. 570, 572 (Civ. App. 1902, ref.) .
(n32)Footnote 31. See Prob. C. § 298; Hume v. Perry, 136 S.W. 594, 596 (Civ. App. 1911, dis.)-presentment not required when decedent was co-guarantor with surviving spouse on series of promissory notes that were due in seven installments and as to which primary obligor had defaulted; see also Anderson v. First Nat'l Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769-770 (1931)-presentment required of claim for cost of medical services.
(n33)Footnote 32. Connelly v. Paul, 731 S.W.2d 657, 660 (Tex. App.-Houston [1st Dist.] 1987, ref. n.r.e.)-no presentment requirement if damages become liquidated only after suit has been filed; see Cross v. Old Republic Surety Co., 983 S.W.2d 771 (Tex. App.-San Antonio 1998, no pet. h.) .
(n34)Footnote 33. Allen v. Denk, 87 S.W.2d 303, 307 (Civ. App.-Austin 1935, no writ) ; Wilder v. Mossler, 583 S.W.2d 664, 667 (Civ. App.-Houston [1st Dist.] 1979, no writ) .
(n35)Footnote 34. See Moore v. Rice, 80 S.W.2d 451, 452 (Civ. App.-Eastland 1935) , dis. 110 S.W.2d 973 ).
(n36)Footnote 35. Donaldson v. Taylor, 713 S.W.2d 716, 718 (Tex. App.-Beaumont 1986, no writ) .
(n37)Footnote 36. Anderson v. First Nat'l Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769-770 (1931) .
(n38)Footnote 37. 38 S.W.2d at 770 .
(n39)Footnote 38. 38 S.W.2d at 770 .
(n40)Footnote 39. See, e.g., Poole v. Rutherford, 199 S.W.2d 665, 667 (Civ. App.-Fort Worth 1947, ref. n.r.e.)­daughter of decedent required to present claim for services rendered in caring for deceased mother; Jaye v. Wheat, 130
Page 208 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
S.W.2d 1081, 1084 (Civ. App.-Eastland 1939, no writ)-in action against siblings, daughter of decedent required to allege facts showing presentment of claim for care services rendered during decedent's life.
(n41)Footnote 41-42. [Reserved].
(n42)Footnote 43. See T.R.C.P. 185; see also § 32.12C.
(n43)Footnote 44. See Prob. C. § 298(a).
(n44)Footnote 45. See Prob. C. § 313; In re Estate of Ayala, 19 S.W.3d 477 (Tex. App.-Corpus Christi [13th Dist.] 2000, n.w.h.)-Section 313 of the Texas Probate Code (requiring claimant to institute suit on rejected claim within 90 days of such rejection) does not bar claim that was filed prematurely; see also § 32.33.
(n45)Footnote 46. Anderson v. First Nat'l Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769 (1931)-quantum meruit theory of recovery asserted in alternative did not relieve creditor from presentment requirement.
(n46)Footnote 47. Baten v. Thornhill, 145 S.W.2d 608, 610-611 (Civ. App.-Beaumont 1940, ref.) ; see Prob. C. §
298. (n47)Footnote 48. See, e.g., Baten v. Thornhill, 145 S.W.2d 608, 610-611 (Civ. App.-Beaumont 1940, ref.) ; Johnson v. First Mortg. Loan Co. of San Angelo, 135 S.W.2d 806, 808-811 (Civ. App.-Austin 1939, no writ) ; Hume v.
Perry, 136 S.W. 594, 597-599 (Civ. App. 1911, dis.) .
(n48)Footnote 49. Baten v. Thornhill, 145 S.W.2d 608, 610-611 (Civ. App.-Beaumont 1940, ref.) .
(n49)Footnote 50. Jones v. Wynne, 133 Tex. 436, 129 S.W.2d 279, 285 (Comm. App., Section B 1939, opinion
adopted) .
(n50)Footnote 51. See C.P.R.C. § 17.001; T.R.C.P. 31.
(n51)Footnote 52. C.P.R.C. § 17.001; see TEXAS LITIGATION GUIDE, ch. 80, Joinder of Third Parties .
(n52)Footnote 53. See Prob. C. § 323; see also Prob. C. § 313; In re Estate of Ayala, 19 S.W.3d 477 (Tex.
App.-Corpus Christi [13th Dist.] 2000, n.w.h.)-Section 313 of the Texas Probate Code (requiring claimant to institute suit on rejected claim within 90 days of such rejection) does not bar claim that was filed prematurely.
(n53)Footnote 54. C.P.R.C. § 17.001; T.R.C.P. 31.
(n54)Footnote 55. Ferguson v. McCarrell, 582 S.W.2d 539, 542 (Civ. App.-Austin 1979) , ref. n.r.e. 588 S.W.2d 895 (1979) ; see National Guaranty Loan & Trust Co. v. Fly, 29 Tex. Civ. App. 533, 69 S.W. 231, 232 (Civ. App. 1902, no writ) .
(n55)Footnote 56. See Moses v. Chapman, 280 S.W. 911, 914 (Civ. App. 1926, no writ) . (n56)Footnote 57. See Prob. C. § 298(a); but see Prob. C. § 306-secured claimant required to present claims as either matured secured claims or preferred liens against specific property; see also § 32.13. (n57)Footnote 58. See Whitehead v. Teague, 483 S.W.2d 378, 379-380 (Civ. App.-Tyler 1972, no writ) ; cf. Hays
v. Nabours, 193 S.W.2d 893, 895-896 (Civ. App.-Eastland 1946, ref. n.r.e.) . (n58)Footnote 59. See Prob. C. § 298. (n59)Footnote 60. Prob. C. § 5A; see English v. Cobb, 593 S.W.2d 674, 675-676 (Tex. 1979)-determination of
decedent's right to probate assets falls within scope of being action incident to estate so that county court at law had
Page 209 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
jurisdiction to determine ownership of bank account in excess of its jurisdictional limit.
(n60)Footnote 61. Whitehead v. Teague, 483 S.W.2d 378, 379-380 (Civ. App.-Tyler 1972, no writ) .
(n61)Footnote 62. See Prob. C. § 5A.
(n62)Footnote 63. Prob. C. § 317; see Prob. C. § 298.
(n63)Footnote 64. Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669 (Civ. App.-Corpus Christi 1979,
ref. n.r.e.)-accountant's services and fees held reasonable and necessary. (n64)Footnote 65. See, e.g., El Paso Nat. Bank v. Leeper, 538 S.W.2d 803, 806-807 (Civ. App.-El Paso 1976, ref.
n.r.e.) ; Kitchens v. Culhane, 398 S.W.2d 165, 166 (Civ. App.-San Antonio 1965, ref. n.r.e.) .
(n65)Footnote 66. See Hunter v. Cook, 375 S.W.2d 574, 576 (Civ. App.-Houston 1964, dis.) .
(n66)Footnote 67. Prob. C. § 294 et seq.; Weathersby v. Makris, No. 01-98-00145-CV, 1998 Tex. App. LEXIS 7452 (Tex. App.-Houston [1st Dist.] 1998 no pet. h.)-attorney for the estate making a request for payment from the estate under Section 242 of the Texas Probate Codeis not required to make a demand against the personal representative first before filing the claim with the court.
(n67)Footnote 68. Dumitrov. v. Hitt, 601 S.W.2d 472, 473 (Civ. App.-Houston [14th Dist.] 1980, ref. n.r.e.) ; see Armstrong v. Stallworth, 613 S.W.2d 1, 2-3 (Civ. App.-El Paso 1979, no writ)-attorney's fees are representative's expenses of administration.
(n68)Footnote 69. See Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669-670 (Civ. App.-Corpus Christi 1979, ref. n.r.e.)-unless otherwise stipulated, it is assumed that personal representative in contracting with third party for professional services did so in his or her individual capacity.
(n69)Footnote 70. Prob. C. § 244; see § 32.40.
(n70)Footnote 71. See Prob. C. § 312(d); Richardson v. Kennedy, 74 Tex. 507, 12 S.W. 219, 220 (1889) .
(n71)Footnote 72. See Richardson v. Kennedy, 74 Tex. 507, 12 S.W. 219, 220 (1889) .
(n72)Footnote 73. See Thomas' Estate v. Fullen, 172 S.W.2d 118, 119 (Civ. App.-Beaumont 1943, ref. w.o.m.) .
(n73)Footnote 74. Prob. C. § 319; see § 32.40-approval required before payment.
(n74)Footnote 75. See Prob. C. § 317(c); see also El Paso Nat. Bank v. Leeper, 538 S.W.2d 803, 806-807 (Civ.
App.-El Paso 1976, ref. n.r.e.)-attorney's submission of unverified statement for services with clerk of court held sufficient to support allowance of fees.
(n75)Footnote 76. See Kitchens v. Culhane, 398 S.W.2d 165, 166 (Civ. App.-San Antonio 1965, ref. n.r.e.) .
(n76)Footnote 77. Prob. C. §§ 242-244. Note that under § 244 expense charges should be made in writing, showing each item of expense, date of expense, and must be verified by affidavit and entered on claim docket; see Ch. 31, Collection, Management, and Distribution of Assets.
(n77)Footnote 78. See Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669 (Civ. App.-Corpus Christi 1979, ref. n.r.e.) .
(n78)Footnote 79. Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669-670 (Civ. App.-Corpus Christi 1979, ref. n.r.e.) .
Page 210 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
(n79)Footnote 80. See Prob. C. § 5A(b).
(n80)Footnote 81. Prob. C. § 317(a); see Prob. C. § 298.
(n81)Footnote 82. Prob. C. § 317(a).
(n82)Footnote 83. Prob. C. § 317(a).
(n83)Footnote 84. See Prob. C. § 306(b); see also § 32.13.
(n84)Footnote 85. Prob. C. §§ 312, 317(b); see § 32.40.
(n85)Footnote 86. Prob. C. §§ 312(e), 317(b); see Ch. 62, Appeals of Probate Proceedings.
(n86)Footnote 87. Prob. C. § 317(c); see Prob. C. § 298; but see Furr v. Young, 578 S.W.2d 532, 536 (Civ.
App.-Fort Worth 1979, no writ)-claim by heir for value of property wrongfully conveyed by representative held to have been barred and to have required presentment.
(n87)Footnote 88. Prob. C. § 3(o); see Ch. 11, Intestate Succession.
(n88)Footnote 89. Prob. C. § 3(s); see also Prob. C. § 3(h), (i)-term ''devisee'' includes legatees.
(n89)Footnote 90. Bandy v. First State Bank, Overton, Tex., 35 Tex. Sup. Ct. J. 843, 835 S.W.2d 609, 617-622 (Tex. 1992) .

Undue Influence and Professional Responsibility

Article can be found HERE

THE NOT-SO-GOLDEN YEARS: POWER OF ATTORNEY, ELDER ABUSE, AND WHY OUR LAWS ARE FAILING A VULNERABLE POPULATION

THE NOT-SO-GOLDEN YEARS: POWER OF ATTORNEY, ELDER ABUSE, AND WHY OUR LAWS ARE FAILING A VULNERABLE POPULATION

by:  JANE A. BLACK † 

University of Illinois Extension - ELDER ABUSE & NEGLECT - definitions, cases, abuser characteristics

Definitions

Physical Abuse

Using physical force that results in physical pain or injury.

Sexual Abuse

Nonconsensual sexual contact with an older person.

Emotional Abuse

Verbal assaults, humiliation, threats, harassment, intimidation, or other abusive behavior.

Neglect

Failure to make provisions for personal care (food, shelter, medical care, social contact), or forceful confinement or restraint of the older adult (either intentionally or unintentionally).

Financial Exploitation

The misuse or withholding or an older adult's resources by another, to the older adult's disadvantage.

The Victim

The typical victim of elder abuse is a widowed, white female in her mid-70s or older, and living on a limited income. The older person usually lives with the perpetrator, who is often a spouse or adult child. Elder victims often do not report being abused. Fearing retaliation by the abuser, being ashamed of the situation, or worrying about having to leave one's home are some of the reasons older adults do not report abuse.

The Abuser

The typical abuser is most often the adult child or spouse of the victim, although older family members and nonrelatives may be perpetrators. The abuser may depend on the older person for housing, financial assistance, or emotional support. Research indicates that caregiver stress, alcohol or substance abuse, and emotional and/or financial problems are factors in many instances of abuse

Case 1

Is This Elder Abuse?

Alice, 75, a widow, lived in a small apartment with her son, Frank, 54. Frank had been in and out of drug and alcohol treatment centers for years, but was doing well for the last six months since he moved back in with his mother. Alice knew here son had nowhere else to go so she took him in under two conditions: he had to find a job and he could not drink.

Frank found a job and things seemed to be going well until he stopped coming home right after work. Alice knew he was stopping at the corner bar because she could smell the alcohol on his breath. The third time this happened, Alice confronted her son. Frank immediately became belligerent, verbally abusing her and forcing her to go to her room. The next night Alice confronted him again threatening to throw him out if he continued to drink. Frank became enraged and started running toward his mother with his fist raised over his head. Fearing for her life, Alice fled to the safety of her neighbor's house.

Case 2

Is This Elder Abuse?

Carol, 24, divorced, lived on the second floor of an apartment with her two young children. Living below her on the first floor was Beatrice, 86, a nice old lady who didn't leave here apartment very often because of her arthritic knees and poor eyesight. Carol and her children visited Beatrice frequently and often helped with her laundry in exchange for occasional babysitting. Beatrice loved their company.

Every Saturday, Carol offered to do the grocery shopping for Beatrice. Because she could not do it herself, Beatrice was happy to accept Carol's help. Carol thought it was okay to keep $20 of the change each week because she was taking the time and trouble to help Beatrice; although, she was never offered any money. Carol thought Beatrice would never realize the money was missing because of her poor eyesight.

A RealityWarning Signs of Elder Abuse and Neglect

Just as there are many types of abuse, there are also numerous signs or symptoms that abuse may be taking place. The following signs do not always indicate an abusive situation, but can be important clues to possible abuse or neglect.

Symptoms of an Abused Older Person

• Unusual or unexplained injuries (cuts, bruises, burns)
• Unkempt appearance
• Pressure or bed sores
• Confinement against will (tied to furniture or locked in room)
• Dehydration or malnutrition without a medical cause
• Fear
• Withdrawal
• Depression
• Anxiety
• Visits to many doctors or hospitals
• Strange and inconsistent explanations for injuries
• Helplessness
• Hesitation to talk openly

Symptoms of an Abuser

• Verbally assaulting, threatening or insulting the older person
• Concerned only with the older person's financial situation and not his or her health or well-being
• Problems with alcohol or drug abuse
• Not allowing the older person to speak for him- or herself
• Blaming the older person
• Attitudes of indifference or anger toward the older person
• Socially isolating the older person from others

In both scenarios it is clear that elder abuse is a disturbing reality in today's society. The risk of being abused, neglected or exploited is real for many older people. Family members or other caregivers are most often the abusers. The problem crosses all geographic, socioeconomic, racial, and ethnic barriers.

According to the National Center on Elder Abuse (NCEA), "Elder abuse in domestic settings is a widespread problem, possibly affecting hundreds of thousands of elderly people across the country. However, because it is still largely hidden under the shroud of family secrecy, this type of abuse is grossly underreported." In fact, many experts agree that the reported numbers represent only the "tip of the iceberg." It is estimated that only 1 out of 14 domestic elder abuse cases is reported to the authorities.

In Illinois, it is estimated that four to five percent of the older population (approximately 80,000 persons) is abused. Only 5,000 cases or so are reported each year. Currently, six out of ten reported cases are substantiated after investigation.

Types of elder abuse may include physical, sexual, or emotional abuse; neglect, or financial exploitation. It is possible that more than one type of abuse may be suspected in any given case. Financial exploitation and emotional abuse are the types most commonly reported in Illinois.

The Elder Abuse and Neglect Program in Illinois

The Illinois Elder Abuse and Neglect Act became law in 1988 and called for the state to address the problem of domestic elder abuse. As a result, the Elder Abuse and Neglect Program was implemented under the direction of the Illinois Department on Aging (IDOA). This statewide program was established to respond to reports of alleged elder abuse, neglect and exploitation and to work with the older victims in resolving abusive situations. Services are available to those age 60 and older who live in the community. The State Long Term Care Ombudsman Program responds to many types of complaints from nursing home residents, including reports of abuse and neglect. The agency responsible for investigating allegations of abuse or neglect in long term care facilities, however, is the Illinois Department of Public Health.

After a report is made, trained case workers assess the situation and provide information and assistance to help the older person and family resolve their problems. Many different programs and services, include but are not limited to, respite care for the caregiver, adult day care, housing assistance, and nutrition resources.

As of January 1, 1999, professionals are required, for the first time, to report suspected abuse, neglect and exploitation of persons over 60 who, because of dysfunction, are unable to report themselves. The mandatory reporting requirement applies only to an older person who is unable to seek assistance for himself or herself in order not to compromise the older person's right to self-determination. Voluntary reporting continues to be encouraged for suspected mistreatment of older citizens who have the ability to self report.

Mandated reporters include a range of professionals in the medical, social service, law enforcement and eldercare fields. Reporters of elder abuse are provided by law with immunity from criminal or civil liability and professional disciplinary action.

If elder abuse is suspected, calls can be made to the IDOA hotline at 800-252-8966, 8:30 to 5:00 Monday through Friday (voice and T.D.D.), or to 800-279-0400 evenings, weekends, and holidays.

Elder abuse and undue influence: what to look for and how you can help.(Of Interest)

Elder abuse and undue influence: what to look for and how you can help.(Of Interest)

Source: Leader's Edge

Publication Date: 01-MAY-05

Article printed with permission of Clark Hill PLC, May 2004 

Three case studies illustrate the gravity and complexity of elder abuse--emotional, physical and financial. As financial advisors, CPAs can play an important role in helping to prevent circumstances where elder abuse might occur and in identifying elder abuse situations. 

It is safe to say that elder abuse occurs more frequently than most realize. In some cases, an individual without close family may be victimized because no one other than the abuser has any consistent contact with the victim. The victim may have no means of escape. Even when the victim can escape, he or she may be afraid of retaliation, of losing his or her independence, of being alone, or of the publicity associated with a criminal or civil proceeding. 

Identifying the Problem 

Recognizing a situation of abuse is no easy matter, especially psychological or financial abuse. Even physical abuse can be hard to detect. Dr. Bennett Blum, in his testimony before the Senate Committee on Commerce, Science and Transportation on July 28, 1999, outlined a framework for spotting an abuse situation: 

"A model was developed that is practical and usable by non-specialists. According to this model, four psychosocial conditions must coexist for undue influence to occur. The four conditions are: (1) dependence upon the perpetrator; (2) isolation of the victim from pertinent social contacts or information; (3) emotional manipulation of the victim; and (4) gaining control of the victim's money or property." 

The following examples illustrate undue influence where each of the elements of the model was present. 

Case Study #1 

A 93-year-old widow lived alone. She had no children. Her closest relative, a nephew by marriage, helped her locate and hire a caregiver. 

Over the subsequent two-year period, the caregiver slowly took control of the widow's affairs. Eventually, the nephew was no longer permitted to visit his aunt. 

The nephew filed a petition for the appointment of a conservator. A Guardian Ad Litem was appointed by the court to meet with the widow at her home. The meeting took place in the presence of the caregiver. The widow told the Guardian Ad Litem that she was happy and comfortable and that everything was fine. She indicated that she liked her caregiver very much and did not want to change any of her circumstances. It was then discovered that the widow had executed new estate planning documents with a new lawyer. 

Based on the Guardian Ad Litem's report, a conservator was not appointed by the Court. 

After another year and continuing concern over the widow's care, the nephew was able to remove his aunt from her home and the presence of the caregiver, at which time the widow admitted that she was abused by the caregiver, feared for her physical safety, and was happy to be free. 

Unfortunately, the caregiver filed for personal bankruptcy and the $60,000 judgment obtained against her for wrongfully taken funds could not be satisfied. 

Case Study #2 

A well-to-do elderly widower vowed never to leave his residence, and had the funds to amply provide for "around-the-clock" care. He hired his own providers. Gradually, they took over and ruled the house. Over time, silver, art objects and other valuables began to disappear. Large credit card purchases as "gifts" to the help were observed. 

When confronted with these facts by his children, the widower was very defensive and more often than not took the side of the caregivers. It was clear, however, they were virtually looting the estate. They would often file for overtime pay and other measures designed to take as much advantage of the financial situation as possible. Extremely large bonus checks were paid to the caregivers with checks that were signed only in the presence of the caregivers. 

They knew their worst enemy was the lawyer, so they purposefully persuaded the client to fire the attorney and hire the counsel selected by the caregivers. They changed the locks on the residence so that the children could not gain access to their father. Phone calls were not permitted, and the children became totally estranged from their father. The father was kept on a constant regimen of tranquilizers, and he seemed to be in a constant stupor. 

His unfortunate death terminated the worst of the situation, but it didn't end there. There were claims for back pay, termination pay, etc. It was plain and simple financial--and perhaps physical--abuse. 

The lessons learned here were to use a licensed care agency to provide staffing; separate the financial responsibilities from care-giving, and insist on regular family visits with review of medical records and medications prescribed by the physicians. 

Case Study #3 

An elderly woman's residence was literally put into a shambles by a "loving" live-in caregiver. The caregiver ingratiated herself so deeply with the woman that even when the woman was told of the caregiver raiding her checkbook of over $200,000 per year for three or four years, the woman was willing to forgive and forget because "she is so nice to me." 

In this case, there was also strong inferential evidence of actual physical abuse. (She had been hospitalized with unusual injuries sustained while "sitting in a chair.") It was later found that her meals were only frozen dinners--even though finances could have provided for a well-rounded diet. 

All the love and affection afforded the woman by the caregiver was forgotten when it came to the family of the woman. They were locked out and told the woman did not want to see them any more. What's more, the caregiver accused them of only wanting to visit so they could "get her money." 

It took intervention by the local police department to physically remove the caregiver under threat of prosecution. Fortunately, with a newly secured care agency, the quality of care improved dramatically, and the woman's health improved significantly. She became reunited with her loved ones, and then enjoyed the remainder of her life surrounded by her family. 

There are no doubt thousands of variations on these themes. Unless very adequate plans are made when a client is able to think clearly, the ability of family, financial advisors and legal counsel to address these issues through the legal system too often is not expeditious or satisfactory. 

Access further details about eldercare and legal issues 

Solutions 

Preventative drafting of estate planning documents is possible, but it is not always an ideal solution. Trust agreements can include elaborate requirements for the modification or amendment of the agreement. For instance, a trust agreement could require that any amendment made after the settlor reaches a specified age have attached to it a certification by a physician, independent long-term friend or advisor or perhaps even a probate judge that the settlor is competent and not under undue influence. 

This may be an extreme approach--which is still not beyond legal challenge--but other less extreme approaches may be appropriate in the right case. The problem with this kind of solution is these mechanisms threaten the settlor's independence and could make simple updates very difficult and expensive. 

There are no simple solutions to the societal problem of elder abuse. Still, there are several things a professional advisor might watch for with an older, long-term client. 

Consider the following: 

(1) look for the indicia of the undue influence model; 

(2) where a client has a caregiver, meet with the client away from the home, outside of the presence of a caregiver (the caregiver should not be waiting in your reception area); 

(3) where any of the model conditions are present, meet with the client more than once a year; 

(4) recommend that someone other than the caregiver assist the client with the payment of bills and expenses, if necessary; 

(5) make sure that the client's estate plan is up-to-date, including planning for possible incapacity; 

(6) ask the client for the name, address and telephone number of the person appointed as agent under their durable power of attorney, and for permission to contact that person, if appropriate in your judgment; 

(7) where any form of abuse may be evident and no one else has or is likely to step forward to protect the client, petition the probate court for the appointment of a conservator, and try to make sure the Guardian Ad Litem is not fooled by the caregiver. Michigan law allows a person (including a CPA) interested in the affairs of someone who needs protection, to petition the court for the appointment of a conservator. 

We live in a society where we are assured of our liberty and independence. The due process requirements of the law are intended to protect these rights. In order for the legal system to adequately protect those who are vulnerable from abuse without impinging on these important fundamental rights, advisors like attorneys and CPAs should be aware of the factors that suggest a situation of abuse, and where appropriate, take action to try to help protect the client. 

Legal Issues 

Most of us have a strong sense of independence. This trait can grow even stronger with age. Our concerns as a society about the protection of those who are vulnerable must be balanced with the legal rights of the individual. 

The legal system provides various standards for examination of a person's ability to make decisions on his or her own, depending on the circumstances. For instance, a person has sufficient mental capacity to make a Will if at the time the Will is made, the person had (a) the ability to understand that he or she was providing for the disposition of his or her property at death, and (b) the ability to know the nature and extent of his or her property, and (c) the ability to know the natural objects of his or her bounty, and (d) the ability to know the manner in which the document disposes of his or her property. 

Generally speaking, this standard applies also to the execution of other documents. Even where a person has sufficient mental capacity to execute the document in question, another person may have unduly influenced him to the extent that the influence overpowers his free will and prevents him from doing as he pleases with his property. 

Michigan Civil Jury Instructions define "undue" influence as that which overpowered the decedent's free choice and caused him to act against his own free will and to act in accordance with the will of the person who influenced him. 

Michigan law presumes that a person who is in a position of trust and confidence with respect to a person, and by reason of such relationship had an opportunity to unduly influence the person, thereby deriving or obtaining a substantial benefit for himself or some other person or interest he sought to benefit, has unduly influenced the person signing the document. 

The standards for appointment of a guardian and a conservator are slightly different. A probate court may appoint a guardian to make decisions regarding another person's physical well-being if the court finds by clear and convincing evidence both that (i) the individual for whom a guardian is sought is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decision, and (ii) the appointment is necessary as a means for providing continuing care and supervision of the incapacitated individual. 

Under Michigan's Estates and Protected Individuals Code, a probate court may appoint a conservator to manage the property and assets of person if the court determines both of the following: 

(a) The individual is unable to manage property and business affairs effectively by reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance. 

(b) The individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual's support, care and welfare or for those entitled to the individual's support, and that protection is necessary or desirable to obtain or provide money. 

Where a petition seeking the appointment of a guardian or conservator has been filed, the courts will follow certain procedures to protect the rights of the person who is the subject of the petition. In most cases, a Guardian Ad Litem is appointed by the court to meet with the subject of the petition and then report findings to the court. 

The court system is well intended but far from perfect. It is costly, intimidating, frequently slow moving, and often inaccessible for those with physical limitations. Besides, the harm often is done before anyone asks for court involvement. 

What can CPAs do? 

Be aware of factors that suggest a situation of abuse and, where appropriate, take action. 

As professionals, we can also advocate, either directly or through our associations, for stronger laws that permit the Attorney General's office or local prosecutors to bring abusive eldercare providers to justice with stiff punishment, which could provide a major disincentive for engaging in abusive actions. The rights of this most vulnerable segment of our population must be balanced with the protections necessary for their well-being. 

CPAs who provide personal financial planning services can earn the Personal Financial Specialist credential through the AICPA, which offers a variety of resources for financial and non-financial eldercare services. 

Visit the CPA ElderCare/PrimePlus Services section of the AICPA web site for more information. 

J. Thomas MacFarlane and Douglas J. Rasmussen are both members of Clark Hill, a full-service law firm with offices located throughout Michigan. MacFarlane specializes in Corporate, Tax Practice, Tax-Exempt and Charitable Organizations and Trusts and Estates. Rasmussen specializes in Corporate, Tax Practice and Trusts and Estates. E-mail MacFarlane or Rasmussen for further information.

How to EnsureRelatives Don'tRip You Off

How to Ensure
Relatives Don't
Rip You Off
Case of Astor's Son Highlights
Risks of Powers of Attorney;
Requiring Regular Accounts
By RACHEL EMMA SILVERMAN and ASHBY JONES
November 28, 2007
Sadly, Brooke Astor is making headlines again. But there may be a lesson in the indictment of the late philanthropist's son and a lawyer close to the family's affairs: It can be risky to hand off financial responsibilities even to someone you think you can trust.
PROTECTING YOUR ESTATE

Even trusted agents can abuse the power of attorney. Here are ways to prevent that:
• Set up checks and balances by naming multiple agents.
• Limit an agent's power to make gifts of your property.
• Consider a living trust for your assets.
(See more steps to safeguard your estate.)
Estate lawyers say older people are often making use of a tool known as a durable financial power of attorney. This legal document authorizes an agent -- usually a spouse, another family member, or a trusted adviser -- to make financial decisions if you become unable to make them yourself. But naming someone to take control over your money has the potential for serious abuse, and lawyers are increasingly devising strategies to help safeguard their clients.
Among the tactics: Lawyers are including provisions requiring regular accounting statements from agents. They also are naming co-agents who can serve as checks on each other, or naming a supervisor who has the power to fire an agent.
"People want to make sure when they sign the document that they do what they can to protect themselves," says Bernard A. Krooks, a lawyer with Littman Krooks in New York, who specializes in elder-law. "When the power of attorney takes over, you're usually no longer in a position to supervise it."
According to the indictment in the Astor case, made public yesterday in Manhattan, Ms. Astor's son, Anthony Marshall, abused his power of attorney in order to "unjustly enrich" himself and others. The indictment alleges that while his mother had diminished mental capacity, Mr. Marshall took works of art from her home and used her funds in a variety of ways: among them, to increase his salary, pay expenses related to a Maine property that Ms. Astor no longer used and pay the expenses of a yacht captain.
"Tony Marshall faithfully and effectively managed his mother's affairs for more than 25 years," responded Mr. Marshall's lawyer, Kenneth Warner, in a statement. Whatever "he received was in accordance with her wishes. ... We're confident that once all the facts are known, Mr. Marshall will be exonerated."
When setting up a power of attorney, you want to name an agent while you're still in good health and can make clear decisions. Typically, such documents are included as part of a standard estate-planning package, which also includes a will and health-care proxy giving an agent the power to make health decisions when you can't. The cost can range from a few hundred to thousands of dollars, depending on what sort of extra provisions and safeguards you include.
It's important to designate someone trustworthy, since the agent has wide latitude over your finances. Because a power-of-attorney arrangement is a private agreement between you and your agent, there is no court supervision.
"What I tell people is that if you don't trust someone one-thousand percent, don't grant them power of attorney," says Ronald Fatoullah, an elder-law specialist in Great Neck, N.Y.
Lawyers say that powers of attorney are often a tough balancing act: You want them to be simple for trusted family members or friends to implement, without too many hoops each time a transaction is made. But you also want to avoid giving agents a license to steal.
"We're certainly seeing a trend in people asking about how their assets can be protected and seeing people ask more questions," says Mr. Krooks, the New York lawyer. A couple of years ago, by contrast, "people said, 'I want to make sure that my kids have the easiest time possible in managing my affairs.'"
To further protect yourself, you can require that your agent provide family members, or a third party, such as a lawyer or accountant, with regular accounting statements. Another strategy is to name co-agents. While that can be a burden -- many transactions, for instance, would need two signatures -- it can also create a system of checks and balances. In some cases, lawyers appoint an additional safeguard: a "protector," who has the power to replace the agent if there is wrongdoing.
Another key point: Make sure to carefully lay out exactly what powers you want your agent to have. For instance, you can limit the agent's power to make gifts of your property, so they can't just give money to themselves. Spell out under what conditions gifts can be made, how much and to whom.
Frank Johns, an elder-law specialist at Booth Harrington & Johns of NC PLLC, in Charlotte and Greensboro, N.C., often asks his clients and their agents to sign "interpersonal agreements," documents that have no legal meaning but which might lay out in simple terms the importance of what's expected. "Signing that document can be a very powerful event," Mr. Johns says. "Usually, I know right away that the agent is going to live by the agreement."
Power-of-attorney laws differ from state to state, so make sure your lawyer is familiar with what your state allows. Rules also can vary by financial institution. Lawyers say banks are increasingly scrutinizing power-of-attorney documents or are reluctant to honor them, because they fear being subject to suits alleging they unwittingly helped an account be drained by an improper agent.
PLANNING AHEAD

Here are some steps you can take to help safeguard your financial power-of attorney document:
• Require that your agent provide family members or a third party with regular accounting statements.
• Name co-agents, who can provide checks and balances, or an overseer who has the power to remove an agent.
• Make sure to carefully lay out exactly what powers you want your agent to have. You can also limit the agent's power to make gifts of your property.
• If using a "springing" power-of-attorney document, which goes into effect only when you are declared incapacitated, carefully specify how you are to be deemed incapacitated. You can require, for instance, that your agent get a second opinion.
• Be aware that rules regarding powers of attorney can vary by state and by financial institution.
• Create a so-called living trust. You can transfer your assets into the trust and designate a trustee to manage trust property if you become incapacitated.
• For more information, or to locate a lawyer who can help draft the documents, contact AARP (www.aarp.org), American Bar Association Commission on Law and Aging (www.abanet.org/aging), American College of Trust and Estate Counsel (www.actec.org) or the National Academy of Elder Law Attorneys (www.naela.org).
There are two main kinds of power-of-attorney documents. If you're using a "springing" power-of-attorney document, which goes into effect only when you are declared incapacitated, make sure to carefully specify how you are to be deemed incapacitated. You can ask, for instance, that your agent get a second opinion to make sure you really are unable to handle your own affairs.
A non-springing power-of-attorney document, meanwhile, goes into effect immediately upon signing. That can be useful in a case where an agent wants to immediately take control to stop, say, abuse by a neighbor or caregiver, without waiting for a doctor's declaration of incapacity. "You can go in and start safeguarding the assets right away," says John Pankauski, a West Palm Beach, Fla., lawyer who specializes in lawsuits involving power-of-attorney abuses. He adds that you really need to trust your agent to do a non-springing power of attorney. Mr. Krooks suggests using a non-springing document, but not handing it over to your kids. "Tell them where it is," he says, and once you lose your capacity, they can use it.
Another option is to use a so-called revocable living trust. These trusts go into effect while you're still alive, and you can name another person as trustee to manage property in the trust once you become incapacitated. Many people name institutions, such as banks or trust companies, as trustees, if they're worried a family member might loot their money. However, you should still name an agent as power of attorney to handle assets not in the trust.
There is some recourse if your agent is accused of financial impropriety. Another loved one can petition a court to name a protective guardian or conservator. Typically, court-appointed guardians can be another family member or a third party, such as a lawyer, a bank, a social worker or a specially trained professional guardian.
In the Astor case, Mr. Marshall's son asked a court in July 2006 to remove his father from Mrs. Astor's affairs, alleging that his father was neglecting Mrs. Astor and enriching himself at her expense. A judge appointed a longtime friend to oversee Mrs. Astor and J.P. Morgan Chase & Co. to serve as the guardian of her estate.
Once a guardian is appointed, he or she then has legal standing to sue the agent to try to recover funds. Jeffrey Skatoff, a probate and estate-planning lawyer in Palm Beach Gardens, Fla., says his firm recently handled a case in which a grandchild with power of attorney had "looted" an account. "We got a guardian appointed, filed a lawsuit for conversion, and were able to set things right." In Florida, he adds, treble damages often attach to lawsuits alleging elder abuse. "So a civil lawsuit can be a powerful tool."
Also, if you sense wrongdoing, contact your local district attorney's office, many of which have elder-abuse units, and let them investigate.
"Unfortunately, when people have authority over money, sometimes very bad things happen," says Mr. Pankauski, the Florida lawyer.
Write to Rachel Emma Silverman at rachel.silverman@wsj.com and Ashby Jones at ashby.jones@wsj.com

Elder Abuse - Financial Exploitation by a Conservator

Elder Abuse - Financial Exploitation by a Conservator

Dru Sampson

J.D. Kansas, May 1996

May 1996

Related neln.org Resources

Introduction

"[O]ne startling conclusion about the whole process of incompetency was drawn from the realization that in almost every case examined the aged incompetent was in a worse position after he was adjudicated incompetent than before. The study could identify no particular benefit which flowed to the incompetent that he could not have received without a finding of incompetency." G. Alexander & T. Lewin, The Aged and the Need for Surrogate Management, 136 (1972) - Syracuse University Press, Syracuse, N.Y.

Quoting Elias Cohen, a Philadelphia attorney and gerontologist, Denise M. Tolpolnicki wrote: "Outside of execution, guardianship is the most radical remedy we have." The Gulag of Guardianship, Money Magazine, Mar. 1989, at 140.

This annotated bibliography highlights a relatively common form of abuse against our state's elder citizens: financial exploitation by a conservator. The materials included are limited to those that define or explain this multi-faceted problem. It is impossible to explore solutions to this problem without understanding the underlying causes, etc. The bibliographic entries include Kansas statutes and cases or introduce concepts which are needed to understand this growing concern. Many of the secondary materials provide a general overview of guardianship/ conservatorship and or elder abuse. Those that mention Kansas law specifically within the work itself are noted. Works that focus on the law of other jurisdictions in this area are purposefully omitted. Numerous articles that have been written on the

alternatives to guardianship/conservatorship but are likewise not included in this bibliography.

The bibliography is divided into eight sections: Definitions, Scope of the Problem, State Response, Other Possible Solutions, Statutes, Cases, Legislative materials, Administrative and executive materials, and Secondary materials. Each section includes those items found through researching the Kansas statutes, American Law Reports, Corpus Juris Secundum, Kansas Digest 2d and University of Kansas and University of Wisconsin Schools of Law and University of Kansas Watson libraries under the headings of:

Conservator;

Elder Law, including elder abuse;

Guardian and Ward;

Mental Health;

Aged; and

Elderly.

 

Additional materials have come through Molly Wood, a Kansas lawyer whose practice deals primarily with elder law issues. She heads the University of Kansas School of Law Elderlaw Clinic.

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Definitions

The following definitions are consistent with the general understanding of the law in Kansas and identify their sources, followed by page or section (¤) number. Full citations appear in the bibliography entries of this annotated bibliography.

Conservatee

a disabled person, with respect to the estate (property, income, and benefits) that is managed by another. Kansas Guide, 11.

a person who has a conservator. Kan. Stat. Ann. ¤ 59-3002(k).

 

Conservator

● "fit and proper" or "suitable" individual(s) or corporation(s) appointed by the court to manage such properties, income, and benefits "on behalf of" a disabled person. Kansas Guide, 11.

Conservatorship

● substitute decision making for matters concerning the incapacitated person's property (assets).

Nutshell, 229.

Disabled person

●  "any adult person whose ability to receive and evaluate information effectively or to communicate decisions, or both, is impaired to such an extent that the person lacks the capacity to manage such person's financial resources or, except for reason of indigency, to meet essential requirements for such person's physical health or safety, or both." Kan. Stat. Ann. ¤ 59-3002(a).

The term "disabled" was purposefully selected in the 1983 law to replace what had been termed "incapacitated." Kansas Guide ¤ 1.3.

Exploitation

                  ● financial abuse of individuals by the repeated improper or illegal use of their assets. Nutshell,

                  398.

taking unfair advantage of an adult's . . . financial resources for another individual's personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense by a caretaker. . . . Kan. Stat. Ann. ¤ 39-1430 (d).

 

Fiduciary abuse

●  a situation in which any person who is the caretaker of, or who stands in a position of trust to, an adult, takes, secretes, or appropriates their money or property, to any use or purpose not in the due and lawful execution of such person's trust. Kan. Stat. Ann. ¤ 39-1430 (e).

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Scope of the Problem

This bibliography will target problem areas in Kansas and Kansas' recognition and response to what is perceived among legal scholars, ethicists, health law advocates, social scientists and the press as a growing area of concern nationwide and worldwide--financial exploitation of the elderly conservatee by the court-appointed conservator. The increasing longevity of our population and increasing number of non-family households teamed with the increasing desire of the elderly to maintain independence in determining their own plans for care if incapacitated emphasize the need to address this concern in a timely fashion. The assumption that a senior citizen is being properly attended to by her/his immediate family is no longer valid, if it ever was.

In a seminar in September of 1994, Molly Wood emphasized that financial exploitation can be thwarted by several different means: the use of joint tenancy with right of survivorship when dealing with real

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property; jointly-held or payable on death accounts when dealing with personal property; limited or full powers of attorney; institutional attorneys-in-fact; limited conservatorships; trusts. All of these legal tools have advantages and disadvantages. All impinge upon an elderly person's independence. And yet none of them can guarantee the involved adult that his/her assets will be safe. None can guarantee that the elder will not be exploited, even by his/her own conservator.

Potential for conservator exploitation exists at three significant stages:

at the incompetence determination stage;
● overreaching of conservator authority at the appointment stage; and/or

during the life of the conservator's appointment.

 

While the intent of Kansas law is to provide the "least restrictive" assistance for its disabled adults, the opposite is far too often the reality. Far too many elders are not represented at their competency hearings; to satisfy convenience rather than necessity, conservators are granted greater powers than are required; and once disabled persons become conservatees, their former rights are rarely reviewed and almost never restored. While conservatees remain nominally under the court's jurisdiction, statutorily required annual accountings often go unfiled, leaving the conservatee open prey for conservator exploitation. As so aptly put by Alexander and Lewin, "in almost every case examined the aged incompetent was in a worse position after he was adjudicated incompetent than before."

Guardianship/Conservatorship Procedures

Kansas separates the concepts of guardian (of the person) and conservator (of a ward's assets and/or property). Because of the language used in the various jurisdictions, some titles listed in the bibliographic entries refer to guardianship but in almost all cases are applicable to conservatorship as well.

In Kansas, as in most jurisdictions, great discretion is given to the district court throughout the guardianship/conservatorship process. Procedures often vary from county to county as to what is required by a conservator. Those electing to serve in that capacity should contact the Clerk of the Court in the county where the conservatee resides for the procedure in that county.

An attorney is usually required to prepare the initial petition and it would serve the lay conservator well to consult with a lawyer to see that all the required steps have been completed.

The steps involved include: the filing of a petition, orders issued by the court setting the time and place of hearing, sending notice to all interested parties, and a hearing before a judge or jury. Upon finding by clear and convincing evidence that the proposed conservatee is a disabled adult in need of a conservator, the judge will determine whether a limited or full conservatorship is needed, set forth such findings of fact in the court's order and issue the appropriate letters after the conservator files a written oath to faithfully discharge all the duties that are assigned by the court. A bond may be required for the

conservator. Within thirty (30) days, unless longer time is granted by the court, the conservator must prepare an initial inventory. Kansas Guide, 14-16, citing Kan. Stat. Ann. ¤¤ 59-1702 and 59-1201.

Unless expressly waived by the court, the guardian must annually report the status of his/her ward on the prescribed form. Throughout the life of the guardianship/conservatorship, the appointed conservator must file a verified annual accounting of the conservatee's estate with the court. If the conservator has been appointed under the authority of the Department of Social and Rehabilitation Services, an annual accounting must also be filed with the Secretary of SRS. Kan. Stat. Ann. ¤ 59-3029.

A conservatorship is not terminated until a final accounting is approved by the court, Kan. Stat. Ann. ¤ 59-3031; therefore, a conservator should again check with an attorney to see that all of the required steps have been completed. If a bond was required, the bond company will not release the conservator until the court orders that the conservatorship is terminated and the conservator and his/her surety are released.

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State Response

Guardianship/Conservatorship Legislation

In response to the growing concern for disabled adults (and minors - although they are not the subject of this annotated bibliography), the Kansas Legislature revised its guardian/conservatorship laws during the 1983 Legislative Session. They became effective July 1, 1983.

Significant was the change in focus of the law from having "charge of" to acting "in behalf of" the ward and "promoting and protecting the care . . . and welfare of the ward." In addition, the new legislation replaced "incapacitated" with "disabled," showing concern for those Kansans who have need of guardian/ conservatorships, but also enabling the courts to meet the individual, personal needs of the wards/ conservatees, while safeguarding their "civil and human rights."

In many cases, the conservator and guardian of a ward/conservatee is one and the same person; however, the court may appoint separate individuals to serve in the two capacities, may appoint a conservator but not require a guardian, or vice versa.

If a Kansas court has proper jurisdiction and venue, it may appoint a conservator for an adult who has filed a petition for voluntary appointment of a conservator under Kan. Stat. Ann ¤ 59-3007, or a disabled person who lacks the capacity to manage such person's financial resources. Kan. Stat. Ann ¤ 59-3006(b)

(1) and (2).

At all times, a conservator is subject to the control and direction of the court. Kan. Stat. Ann. ¤ 59-3019.

Kansas statutes currently:

                  1.      allow a corporation to serve as a conservator. Kan. Stat. Ann. ¤ 59-3037.

                  While a corporation serving as a guardian must be a "private, non-profit corporation, certified by the Secretary of Social and Rehabilitation Services," Kan. Stat. Ann. ¤¤ 59-3002(d) and (f), 59­3013, a court may allow a bank or trust company to serve as a conservator. Kan. Stat. Ann. ¤¤ 9­1606, 59-1701(5).

2               set out the rights and duties and powers of a conservator, all requiring the conservator to act "on behalf of" and to manage the estate "for the benefit of" the conservatee. Kan. Stat. Ann. ¤ 59­3019 - 3026, 59-1702.

3               require an annual, verified accounting, Kan. Stat. Ann. ¤ 59-3029(b).

4               allow for the removal of a conservator, Kan. Stat. Ann. ¤ 59-3014(e), when s/he is incapable of performing the duties or fails or refuses to perform the duties imposed. Kan. Stat. Ann. 59-1711, or when upon review, the court determines that the conservator is not serving the needs of the conservatee. Kan. Stat. Ann. ¤¤ 59-3035(a)(1) and (5) and (c).

 

Kansas Guardianship Program

While initiated in 1979 as a division of the Kansas Advocacy and Protective Services, Inc. (KAPS), the Kansas Guardianship Program was established as a separate entity in 1995 by the Kansas Legislature through the Kansas Guardianship Program Act. Its purpose is to recruit volunteers to serve as court appointed guardians or conservators, or both, for adults who are found by the court to be in need of this level of protection. Kan. Stat. Ann. ¤ 74-9602.

The program's express goal is to provide . . . qualified, caring, willing and trained persons . . . throughout the state . . . for those eligible [court determined] disabled persons in need of . . . protection and advocacy, and for non-adjudicated persons who elect to have a voluntary conservator and who do not have family members capable of or willing to assume such responsibilities. Kan. Stat. Ann. ¤ 74­9602.

The main office of the Kansas Guardianship Program is located at:

Kansas Guardianship Program

3248 Kimball Avenue Manhattan, Kansas 66503-0353 Its telephone number is: 913/587-8555, or 1-800-672-0086 for a toll-free message only.

Other offices are located at: 6700 Squibb Road, Ste. 104, Mission, KS 66202 Phone: (913) 236-5207

The Kansas Guardianship Program is a public instrumentality and is governed by a seven-member, voluntary board of directors, consisting of the chief justice of the supreme court or designee, and six residents of the State of Kansas appointed by the Governor, at least one of whom is serving as a volunteer in the program.

Since its beginnings seventeen years ago, what is now the Kansas Guardianship Program, has had approximately 1800 ward/conservatees statewide and over 750 volunteer guardian/conservators. According to Laura Dickinson, a recruiter/facilitator for the program, it is the only volunteer guardianship program in the country and serves as a model for numerous states that are trying to establish like programs.

A volunteer in the program who is appointed by the court as a guardian/conservator then contracts with the program to provide a high level of advocacy and protection for his/her ward/conservatee or volunteer conservatee. This includes monthly reports of activities that have been undertaken on behalf of the ward/ conservatee, regular visits to the him/her, and services on his/her behalf which are reimbursable up to $20/month.

The Kansas Guardianship Program also serves as a resource for all Kansans serving in the capacity of a guardian or conservator. Even if not affiliated with the Kansas Guardianship Program as one of its volunteers, any guardian/conservator can contact the program with questions they may have.

Kansas Protective Statutes

Kansas statutes were enacted in 1989 to require, upon reasonable cause to believe, the reporting of any abuse, neglect and/or exploitation, including "fiduciary abuse," of certain adults to the Department of Social and Rehabilitation Services. Kan. Stat. Ann ¤ 39-1430(e). Those required to report include licensed psychologists, chief administrative officers of medical health care facilities, licensed social workers, licensed professional nurses, licensed practical nurses, licensed dentists, law enforcement officers, and chief administrative officers of licensed home health agencies. Kan. Stat. Ann. ¤ 39-1431. Those who are required to report but fail to do so are guilty of a class B misdemeanor. Kan. Stat. Ann. ¤ 39-1432(e). "Any other person having reasonable cause to suspect or believe that an adult is being or has been abused, neglected or exploited . . . may report." (Emphasis added.) Kan. Stat. Ann ¤ 39-1431 (c). Both classes of reporter receive immunity from liability for the reporting. Kan. Stat. Ann ¤ 39-1432.

The involved adult may refuse any protective services attempted. Kan. Stat. Ann. ¤ 39-1438. The statute

does not lay out specific remedies under the act but indicates that any actions taken under the act shall be the least restrictive actions which will accomplish protection and accommodation for the involved individual. Kan. Stat. Ann. ¤ 39-1442.

This statute falls short of providing penalties for the abuser and, ironically, does not make the exploitation, abuse or neglect a crime. . . only the failure to report it.

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Other Possible Solutions

Suggestions implemented in other states for the prevention of financial exploitation by a conservator include:

1               devising a system of court appointed visitors; and/or

2               making the exploitation of elders a crime with criminal penalties for the abuser/exploiter; and/or

3               the development of guardian/conservator training for those serving in that capacity.

 

Kansas has not enacted any of these.

Back to Index

 

Statutes

Federal Statutes

42 U.S.C. 3058 et seq., Older Americans Act, Title VII Subp. 3, Programs for Prevention of Elder Abuse, Neglect, and Exploitation.

42 U.S.C. 3058(g) requires long-term care ombudsman programs. In Kansas, Kan. Stat. Ann. ¤ 75-5916 et seq. provides for the Office of a long-term care ombudsman.

State Statutes

Kan. Stat. Ann. ¤ 9-1606 (1991 & Supp. 1995). Authority of consolidated bank or trust company to act as fiduciary.

Kan. Stat. Ann. ¤ 17-5004 (1995). Standards for investments by fiduciaries; prudent investor rule; conservators; trustees following written directions regarding trust property.

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The prudent person standard is utilized to test whether a fiduciary properly invested his/her protectee's finances. See Kansas Attorney General Opinion 89-123.

Kan. Stat. Ann. ¤ 39-1430 et seq. (1993 & Supp. 1995). Reporting abuse, neglect or exploitation of certain adults.

This statute includes fiduciary (conservator) abuse and exploitation in its definitions and requires the reporting of such to the Department of Social and Rehabilitation Services by certain classes of professionals who have the opportunity to come into contact with the protected group. The law encourages all individuals to report any suspected exploitation.

Kan. Stat. Ann. ¤ 59-1201 (1994 & Supp. 1995). Inventory and valuation.

When a conservatorship appointment is made, an inventory of conservatee's real estate and tangible personal property in Kansas and all intangible property wherever located is required within thirty (30) days unless longer time is granted by the court. This includes the full and fair market value as of the date of appointment.

Kan. Stat. Ann. ¤ 59-1701 et seq. (1994 & Supp. 1995). Provisions applicable to all estates. Corporate fiduciaries.

Includes the duties granted corporate fiduciaries, liability for conversion and notice requirements, and numerous situations which a fiduciary might encounter.

Kan. Stat. Ann. ¤ 59-1711 (1994 & Supp. 1995). Removal and penalties.

The general authority to remove a fiduciary is provided by this statute. A fiduciary (conservator in this case) may be removed whenever he or she:

                  is or becomes incapacitated; or
● otherwise incapable of performing duties imposed; or

                  fails or refuses to perform such duties as the court orders.

 

The conservator's compensation may be reduced or forfeited in the court's discretion.

Kan. Stat. Ann. ¤ 59-3001 et seq. (1994 & Supp. 1995). Guardians or Conservators.

The statutes in this article provide the law in Kansas regarding guardian/conservatorships.

Kan. Stat. Ann. ¤ 59-3014 (1994 & Supp. 1995). Appointment of guardian or conservator; priority of nominee; qualifications; limited guardianship or conservatorship; appointment of successor guardian or

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conservator.
Subsection (1)(e) speaks of the court's authority to remove a conservator.
Kan. Stat. Ann. ¤ 59-3028 (1994 & Supp. 1995). Termination of guardianship or conservatorship, when.
Note there is no provision for the termination of a conservatorship in the event of abuse ( financial

exploitation) of the conservatee by the conservator under this statute.
Kan. Stat. Ann. ¤ 59-3029 (1994 & Supp. 1995). Annual and final reports and accounts.
Removal at the discretion of the court is explicit in the statute but it does not address when a conservator

may be removed, etc. It is clear that a conservator is not released from liability upon removal, but only upon the presenting, settling, and allowance of the final accounting.

Kan. Stat. Ann. ¤ 59-3032 (1994 & Supp. 1995). Costs of proceedings, payment.
Fees for professional services, including appointed counsel, may be taxed to the ward's estate or to the
county of residence of the conservatee, if the conservatee is under the jurisdiction of SRS, or to the
petitioner.

Kan. Stat. Ann. ¤ 59-3035 (1994 & Supp. 1995). Periodic review of conservatorship or guardianship;

procedure; orders.
This statute addresses the periodic review of a conservatorship by the court and provides that the court
has the authority to issue appropriate orders including the removal of a conservator whenever it finds:

                  the conservator fails to meet the conservatee's needs, or

                  the conservator ceases to function in a manner consistent with the letters of conservatorship, or

                  the conservator should be replaced.

 

The court can conduct more frequent reviews at its discretion.

Kan. Stat. Ann. ¤¤ 75-5916 - 22 (1989 & Supp. 1995). Office of long-term care ombudsman.

Establishes the office whose duties include the development of programs to inform residents of long-term care facilities and those responsible for them of their rights and responsibilities. The office investigates and resolves complaints, referring complaints of abuse, neglect and exploitation of a resident to the Secretary of Health and Environment.

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Cases

Federal Cases

Addington v. Texas, 441 U.S. 418 (1979).

The court held that at least a "clear and convincing" standard of proof is required by the Fourteenth Amendment in a civil proceeding brought under state law to commit an individual involuntarily. 418. The individual's liberty interests are of such weight and gravity when balanced against the state's interest of parens patriae that to require less would not meet the demands of due process. 428. Commitment for any purpose constitutes a significant deprivation of liberty that requires due process. 425. States are free to use a higher standard. 433. Cited in Kansas conservatorship cases.

Kansas Cases

Achenbach v. Baker, 151 Kan. 827, 101 P.2d 937 (1940).

Later courts used the following as precedent to support the removal of a guardian (conservator):

The court examined the record in an action wherein a trustee of a testamentary trust was removed for cause and found that the lower court's holding that the trustee's removal was for the best interest of the beneficiaries was supported by substantial, competent testimony and will not be disturbed. Syl. ¦3.

Pedroja v. Pedroja, 152 Kan. 82, 102 P.2d 1012 (1940).

Used to support the removal of a guardian/conservatee: the court held that where there exists and probably will continue to exist friction between the trustee and his two sisters, and in that in the interest of harmony and efficient management of the trust, that the plaintiff trustee should be removed as trustee, and a new trustee appointed. 86.

Wolf v. Weissbeck, 157 Kan. 308, 139 P.2d 398 (1943).

The court emphasized that the paramount duty of both the guardian and the probate court was to protect the estate of the incompetent. 311.

Cornelison v. Walters, 178 Kan. 607, 290 P.2d 1016 (1955).

Where an order giving the guardian (now conservator) permission to cash a ward's (now conservatee's) bond and close his estate was made without any notice whatever being given, such order was void and subject to collateral attack. 612.

In re Estate of Osborn, 179 Kan. 365, 295 P.2d 615 (1956).

The court's authority for the removal and replacement of a guardian/conservator was applied to guardianship of an incompetent adult. The probate court and, on appeal, the district court had the power to remove the guardian of a person and estate (conservator) of an incompetent (ward/conservatee) for good and sufficient cause. 371. The best interest of the ward/conservatee constitutes such good and sufficient cause for the removal of such fiduciary. Id.

In addition, the court found that a conservator's fiduciary responsibility remains in effect until that conservator is released. An appeal from a probate court order removing a guardian/conservator does not revoke, but merely suspends, the operation of such orders until the appeal is determined. Syl. ¦1.

Rathbun v. Hill, 187 Kan. 130, 354 P.2d 338 (1960).

The court reemphasized the "general rule that executors, administrators, guardians, trustees, and functionaries of that general character may not traffic to their own private advantage in estates or properties towards which they have any official or moral responsibility is as much a principle of ethics and practical honesty as it is of law." 143.

In re Ingham's Estate, 212 Kan. 218, 510 P.2d 597 (1973).

The court found that the statutes provide that the purpose of a conservatorship is to control, manage, and preserve the assets of a conservatee's estate during that conservatee's lifetime. 223.

Union Nat. Bank of Wichita v. Mayberry, 216 Kan. 757, 533 P.2d 1303 (1975).

Taking its cue from a similar California case, the court held that where a conservatorship is voluntary and the conservatee has the testamentary capacity, a conservator has the duty to take charge of the conservatee's estate and manage or conserve it for the support of the conservatee; but the conservator's duty is only to manage the conservatee's estate during his lifetime. It is not the conservator's function, nor that of the probate court supervising the conservatorship, to directly control testamentary disposition after the conservatee's death. 761. But see Marcotte, infra p. 16, for a distinction.

Citizens State Bank & Trust v. Nolte, 226 Kan. 443, 601 P.2d 1110 (1979).

Where a conservatorship is voluntary, the conservator is a fiduciary appointed to conserve the estate for the benefit of the conservatee. It is not his function, nor that of the probate court supervising the conservatorship, to control disposition of the conservatee's property after death. 449.

A conservatee under a voluntary conservatorship cannot contract or deed away his real or personal property inter vivos without the prior approval of the conservator and, where required by statute, the

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approval of the district court. 450.

The court justifies its ruling in such a way to protect our elders stating: Incapacity is a matter of degree. As all of us grow older, we gradually lose our faculties, both physical and mental. . . . If a voluntary conservatee . . . were to be given an unbridled power to contract or deed away his property inter vivos, the voluntary conservatorship would seldom be used. 450-51. Instead loved ones, in an effort to protect the conservatee, would utilize the compulsory conservatorship and "the old folks would in most instances be required to spend their golden years branded as 'incapacitated' or 'incompetent.' " Id. at 451.

The court also points out that it would be "an impossible situation" for the conservator if such power to contract was given a voluntary conservatee because the conservator, "although given duties and responsibilities, would really have no control over the estate of the conservatee." Id.

The court suggested that such a conservatee has three options:

                  terminate the conservatorship by filing a verified application that indicates the conservatorship is no longer desired; or

                  execute the appropriate power of attorney rather than continue with the voluntary
conservatorship; or

                  use a will to make a testamentary disposition of the property.

 

Id.

A third party, who innocently contracts with a voluntary conservatee, may be protected from injustice on rescission by the court's application of the equitable principle of restoration of the status quo. Id. at 452.

In re Miller, 228 Kan. 606, 620 P.2d 800 (1980).

Subject matter jurisdiction is granted based on the ward/conservatee's presence in the state, even though a foreign jurisdiction has previously exercised jurisdiction by appointing a guardian or conservator or both, and continues to exercise such jurisdiction. 610, citing Restatement (2d) of Conflict of Laws ¤ 79 (1971).

An attorney who personally petitions for the appointment of a guardian or conservator for a proposed ward or conservatee will not be allowed attorney's fees because such professional services are not technically "ordered by the court" as required by Kan. Stat. Ann. ¤ 59-3032. 611.

And, when the assets of the conservatee are in the foreign jurisdiction, attorney's fees must be petitioned from the court with original jurisdiction. Kansas courts do not have the jurisdiction to allow such a claim. Id.

Hatfield v. Hatfield, 231 Kan. 427, 646 P.2d 481 (1982).

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Accepting of benefits of a judgment constitutes an acceptance of the judgment and forecloses a former wife of a conservatee's right to appeal. 430.

Trusteeship of Sandstrom, 236 Kan. 805, 696 P.2d 958 (1995).

While statutes provide that the provisions of law relating to the estates of incapacitated persons and the conservators thereof . . . shall govern the administration and management of a convict's estate, 809, that convict is not deprived of the capacity to contract and convey property if it diminishes the conservatorship estate like a voluntary conservatee is. Id.

In re Conservatorship of Marcotte, 243 Kan. 190, 756 P.2d 1091 (1988), appeal after remand, No. 65,771, 294 Kan. ix (July 12,1991), 815 P.2d 119 (1991).

Administrator of decedent conservatee's estate sued the former co-conservators to recover alleged converted funds. The conservatorship was voluntary.

Here, the court distinguishes from Mayberry, supra p. 14, saying that the decision there was based on testamentary versus inter vivos gifts, not whether the property was real or personal.

The court found that the penalty provisions of Kan. Stat. Ann. ¤ 59-1704, which holds that a person who converts the property of a conservatee to his/her own use is liable for double the value of the property, are mandatory, regardless of whether the conservator acted in putative good faith. 194.

Payments made by co-conservators which were not made for the benefit of the conservatee or did not represent necessary expenses of the conservatorship constituted "waste" for which the co-conservators were held liable to the conservatee's estate, together with interest earned from the date of the payments.

198.

The court ruled that co-conservators were individually liable for the value of any gifts and expenses, plus interest, made from the conservatee's estate without the court's approval, which resulted in personal gain to the co-conservators and their families. Syl. ¦6.

Brice-Nash v. Brice-Nash, 5 Kan. App. 2d 332, 615 P.2d 836 (1980).

An adjudicated "incapacitated" ward/conservatee does not have the capacity to file for a divorce. 338.

Fielder v. Howell, 6 Kan. App. 2d. 565, 631 P.2d 249 (1981).

A guardian/conservator who is also a joint tenant with right of survivorship with his ward/conservatee has a conflict of interest which demands scrupulous fairness and impartiality in administering the estate.

Syl. ¦1.

A case by case approach must be taken to determine whether the beneficiary of the trust is actually harmed when a conservator is alleged to have a conflict of interest and may have breached his/her fiduciary duty. 567. (See also Briley, infra p.19.)

In re Lake, 7 Kan. App. 2d 586, 644 P.2d 1368 (1982).

This case sets out the factors to be considered for removal of a guardian. A mentally disabled adult ward had been under a guardian and conservatorship to the ward's sister for seven years when the ward's husband, once divorced from the ward but now remarried to her, appealed the denial of a motion to change the ward's guardian/conservator. The husband was not incapacitated. Independent testimony indicated that the conservator threatened to institutionalize the ward if she complained about her treatment. It further indicated that the conservator was using the ward's financial resources for her own personal use and was neglecting her conservator responsibilities by not visiting the ward and not providing for the ward's medical care.

The appeals court reversed the trial court's decision denying the husband's motion stating it abused it's discretion "in failing to consider the actions of the guardian to [the ward's husband] and the evidence of distrust by the ward" to her conservator.

This case establishes that it is within the court's discretion to remove a guardian. 588.

The "best interests" of the ward is the standard that is applied. 588-89.

Factors that must be considered include:

                  Overall relationship of the guardian and the ward;

                  Desires of the ward in light of the severity of his particular incapacitating condition;

                  Adequacy of the guardian's past financial records and decisions; and,

                  Availability of a fit and proper person willing to be substituted as guardian and conservator. Syl. ¦3.

 

In re Conservatorship of L.M.S., 12 Kan. App. 2d 725, 755 P.2d 22 (1988).

Any transaction where there is a substantial conflict of interest is voidable unless approved by the court after hearing upon notice to all interested persons. 727.

The court does not have discretion to decide who will receive notice of its proceedings and yet issue orders that bind even interested persons who receive no notice. 726.

Whether conservator's expenses are reasonable is left to the court's discretion and is reversible only

when the court abuses that discretion. 729.

Matter of Estate of Briley, 16 Kan. App. 2d 546, 825 P.2d 1181 (1992).

As its fiduciary, a conservator has the general duty to exercise the same diligence and prudence that would ordinarily be employed by reasonable people toward the management of that conservatee's estate.

548.

Those duties include taking any reasonable steps to manage and protect the conservatee's assets from dissipation by joint depositors or others with access to the property. Id.

The conservator may withdraw from the joint account only to provide what is necessary for the conservatee's maintenance. A conservator does not succeed to the full discretionary personal rights of the conservatee in jointly-held accounts. 549.

A conservator is not the alter ego of the conservatee; therefore, a decision to terminate joint accounts or change a beneficiary is a personal, elective right of the conservatee, as is a decision regarding distribution of the conservatee's property after the conservatee's death. Id.

A conservator should protect jointly-held funds by obtaining a court order, thus requiring the court's approval for all withdrawals by any party to the account. 550.

In re Fogle, 17 Kan. App. 2d 357, 837 P.2d 842 (1992).

Converting a limited guardian/conservatorship to a guardian/conservatorship with full powers requires notice to the proposed ward/conservatee. 362. The notice provisions are mandatory and failure to comply with them deprived the court of jurisdiction over the proposed ward/conservatee. 361. But see Heck, infra p. 21. (Once a petition for conservatorship has been filed in the county where the proposed conservatee resides, the court has jurisdiction over the matter.

Campbell v. Black, 17 Kan. App. 2d 799, 844 P.2d 759 (1993).

Where a conservatorship is voluntary because of physical, rather than mental, infirmities, the conservator is a fiduciary appointed to conserve the estate for the benefit of the conservatee. 805-06.

A conservator is not prohibited from withdrawing funds from the conservatee's account even if he is a joint account holder, but the conservator should obtain approval from the court for all withdrawals from the account by any party. 805.

Being a joint account holder does not alter his fiduciary obligations. The conservator and conservatee are not in the same relationship as mere joint account holders. The conservator owes a fiduciary

obligation to the conservatee to act for her benefit and protection. 806.

In re Conservatorship of Holman, 18 Kan. App. 2d 173, 849 P.2d 140 (1993).

The court's acceptance of conservator's final accounting is an appealable order once notice is given to all interested persons. 176.

Matter of Conservatorship of McRoy, 19 Kan. App. 2d 31, 861 P.2d 1378 (1993).

The facts in this case are unique in that the conservator was both the natural mother of the minor conservatees and a lawyer; however, the court makes it perfectly clear that its decision should not be construed in any way as restricting the power of the district court in regulating the activities of all conservators. 34.

Where there has been a breach of duties, the district court has the power to remove a conservator. Here, a breach of duty included a failure to supply the required accountings, but the court included "otherwise comply with the supervisory orders of the court." 34-5.

Procedural safeguards such as adequate notice to the conservator is required before removal. 34-5.

Where there has been a breach of duty, the court has the power to reduce or mandate the forfeiture of the conservator's compensation. Id.

The district court not only has the right but has an affirmative duty and obligation to carefully scrutinize the activities of the conservator and to make corrective orders when necessary. 35.

A district court has clear authority to use its contempt powers to compel compliance with its orders, but must scrupulously follow the procedures for indirect contempt and must keep a record which is reviewable. 35.

If sufficient facts appear in the record, a showing that the conservator's failure to account was willful is not required. 36.

Matter of Guardianship and Conservatorship of Heck, Nos. 72,440 and 72,723 (Kan. App. Mar. 15, 1996), 913 P.2d 213 (1996).

Once the petition was filed in the proposed conservatee's county of residence, subject matter jurisdiction over conservatorship estate existed. Syl. ¦2.

In enacting Kan. Stat. Ann. ¤ 59-3001 et seq., the legislature did not intend to prohibit a conservator from taking any action on behalf of a conservatee prior to the posting of a bond and the receipt of letters

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of guardianship. Syl. ¦6.

Back to Index

 

Legislative Materials

House Select Committee on Aging, Elder Abuse: A National Disgrace, (Comm. Pub. No. 99-502) Washington, D.C., U.S. Government Printing Office. (1985).

House Select Committee on Aging, The Tragedy of Elder Abuse: The Problem and the Response, (Comm. Pub. No. 99-580) Washington, D.C., U.S. Government Printing Office. (1986).

House Select Committee on Aging, Problems of the Elderly: Central States Coalition on Aging, (Comm. Pub. No. 99-609) Washington, D.C., U.S. Government Printing Office. (1987).

Of special interest in this hearing report before the Subcommittee on Health and Long-Term Care is the statement of Joyce Romero, then Secretary of the Kansas Department on Aging, which speaks to the goal of safeguarding the elderly against abuse, neglect and exploitation. 41.

House Select Committee on Aging, Subcommittee on Health and Long-Term Care, Elder Abuse: A Decade of Shame and Inaction, (Comm. Pub. No. 101-752, Chairman's Report) Washington, D.C., U.

S. Government Printing Office. (1990).

House Select Committee on Aging, Subcommittee on Health and Long-Term Care, Elder Abuse: A Decade of Shame and Inaction, (Comm. Pub. No. 101-768) Washington, D.C., U.S. Government Printing Office. (1990).

House Select Committee on Aging, Subcommittee of Human Services, Meeting the Needs of the Frail Elderly, (Comm. Pub. No. 101-755) Washington, D.C., U.S. Government Printing Office. (1990).

House Select Committee on Aging, Subcommittee of Health and Long-Term Care, Elder Abuse: Curbing a National Epidemic, (Comm. Pub. No. 102-798) Washington, D.C., U.S. Government Printing Office. (1991).

House Select Committee on Aging, Subcommittee of Human Services, Elderly Abuse: What Can Be Done?, (Comm. Pub. No. 102-808) Washington, D.C., U.S. Government Printing Office. (1991).

House Select Committee on Aging, Improving the Lives of Senior Citizens: Progress Being Made on Congressional and Local Levels, (Comm. Pub. No. 102-831, Briefing by Hon. Harold Ford.) Washington, D.C., U.S. Government Printing Office. (1991).

Of special interest are the remarks about elder exploitation by Karen P. Dennis, Executive Director of the Memphis Area Legal Services, Inc.. 41.

Back to Index

 

Administrative and Executive Materials

Commission on National Probate Court Standards, National College of Probate Judges & National Center for State Courts, National Probate Courts Standards (1993).

In response to the many criticisms of the guardianship process, the National College of Probate Judges adopted the Standards. They are divided into three sections: Probate Court Performance, Administrative Policies and Procedures, and Probate Practices and Proceedings, which include nineteen standards on conservatorships.

Back to Index

 

Secondary Materials

Model Codes, Restatements

Model Rules of Professional Conduct Rule 1.14

If the attorney for a client/guardian becomes aware that he/she is not acting in the best interests of the ward, "the lawyer may have an obligation to prevent or rectify the guardian's misconduct." No guidance is given concerning how to accomplish this but the reader is referred to Rule 1.2(d), which states that they lawyer may not counsel or assist a client in criminal or fraudulent conduct.

ABA Comm. on Ethics and Professional Responsibility, Opinion Cl-805 (9/3/82).

An attorney aware of a client/guardian's misconduct should make a reasonable attempt to have the client/ guardian correct the problem. If the client fails to respond to the attorney's advice, the attorney should disclose the situation to the court regardless of the confidentiality concerns.

Kansas Bar Association's Annotations of Ethics Opinions, 1979-1995, Opinion # 82-44. Disclosure of Client Fraud.

A lawyer shall not knowingly reveal a client's confidence or secret unless permitted under DR 4-101(c), which addresses the intention to commit a crime and the lawyer's ability to prevent that crime. The Code does not impose a duty to investigate or disclose past crimes. A lawyer would have no duty to report a

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client's past crime of fraud. This seems to be in conflict with the above American Bar Association opinion.

Books, pamphlets

George J. Alexander & Travis H.D. Lewin, THE AGED AND THE NEED FOR SURROGATE MANAGEMENT, self published (1972). [183 pages].

A law review type article with extensive bibliography, beginning on page 165, which draws extensively on the authors' New York and California experiences. The authors call for a Model Statute. 135. Kansas statutes are charted. 33, 39, 47, 51, 55, 85, and 91.

American Bar Association Commission on Legal Problems of the Elderly and Young Lawyers Division's Committee on the Delivery of Legal Services to the Elderly, GUARDIANSHIP OF THE ELDERLY: A PRIMER FOR ATTORNEYS, ABA, 1800 M Street, N.W., Washington, D.C. (1990). [49 pages plus Appendices A-F].

A concise, step by step guide for attorneys who are beginning work in this area or those who haven't worked in the area for a while.

American Bar Association Commission on Legal Problems of the Elderly and Young Lawyers Division's Committee on the Delivery of Legal Services to the Elderly, THE LAW AND AGING RESOURCE GUIDE, ABA, 1800 M Street, N.W., Washington, D.C. (1981). [334 pages].

This guide is intended to be of assistance to legal counsel and elderly in contacting relevant resources within their state. Kansas is listed in alphabetical order but the listings are often outdated. The work provides a place to start if looking for such resources but is no longer reliable.

Sia Arnanson, Ellen Rosenzweig, Andrew Koski, THE LEGAL RIGHTS OF THE ELDERLY, Practicing Law Institute, New York, N.Y. (1995). [319 pages].

Written for the lay audience in an easy-to-read question and answer format, the guide offers a description of a wide range of assistance programs available to the elderly. It is a good resource which provides the information necessary to apply for and receive the benefits for which this targeted group is entitled. The concern of conservator exploitation might require research and discovery through numerous Kansas state agencies. Addresses of these agencies are listed on pages 235 (Kansas Department of Aging), 241 (Area 6 Office of the AARP), 244 (Kansas Insurance Department), 254 (Long-term Care Ombudsman Program,) 260 (Kansas Income Support and Medical Services Office, 269 Medicare Carriers), 279 Medicare Peer Review Organizations, 286 Durable Medical Equipment Regional Carriers), and 290 (Veterans' Affairs Offices). Guardianship is discussed briefly at 226.

Robert N. Brown, AN AMERICAN CIVIL LIBERTIES UNION HANDBOOK, THE RIGHTS OF

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OLDER PERSONS: THE BASIC GUIDE TO AN OLDER PERSON'S RIGHTS, ACLU, Avon Books, Mail Order Dept., 250 West 55th Street, New York, N.Y. 10019 (1979). [434 pages].

As would be expected, the focus of this book is on the legal rights lost or affected when a guardian/ conservator is appointed for an elderly person, as well as the due process rights they retain throughout the various stages of this civil action process. 277-326.

Robert N. Brown, AN AMERICAN CIVIL LIBERTIES UNION HANDBOOK, THE RIGHTS OF OLDER PERSONS: THE BASIC GUIDE TO AN OLDER PERSON'S RIGHTS, ACLU, Southern Illinois University Press, Carbondale and Edwardsville, Ill. (1989). [413 pages].

The second edition of this book is "completely revised and up-to date." Taking its cue from the first edition, the authors reflect the ten years of law since its publication. Conservator is defined on page 334. Approaches to avoid guardianship/ conservatorship are discussed beginning on page 349. Adult protective services is added. 360-4. Notes following the chapters and Appendices are helpful and include Kansas references.

Edmund F. Dejowski, JD, Ph.D., PROTECTING JUDGMENT-IMPAIRED ADULTS: ISSUES, INTERVENTIONS AND POLICIES, The Hayworth Press, Inc., New York, N.Y. (1990). [175 pages].

An excellent collection of writings by authors from various disciplines on topics leading to the appointment of guardians or conservators. Approaches to and instruments for identifying mental capacity, court responsibility for guardian abuse of elders, recommended alternatives for guardianships, possible abuse by guardian/conservators that are ignored by both guardians ad litem as well as court personnel, and material abuse are explored. Of special interest is the article by Kansas authors Lloyd Hull, Gary E. Holmes and Ronald H. Karst on Managing Guardianships of the Elderly: Protection and Advocacy as Public Policy, found on page 145. Each article contains its own references, which provide additional reading for those interested.

Thomas T. Dunn, A LAWYER'S ADVICE TO RETIREES, Doubleday & Co., Inc., Garden City, N.Y. (1981). [241 pages].

The author outlines what anyone needs to "beware of" from their professional and family "advisers" as they mature. Likely situations are set out in Exhibits and Rules. The author's overriding recommendation is to "retain your financial independence as long as practicable." xiii. "Guardian angels" are discussed in chapters 2 and 3. I found this work confusing.

Lawrence A. Frolik & Alison P. Barnes, ELDERLAW, SELECTED STATUTES AND REGULATIONS, The Michie Co., Charlottesville, Va. (1992 Ed.). [408 pages].

Contains the optional short form Model Statute for Guardianship and Conservatorship, which among other things provides more protection for the proposed ward/conservatee and ward/conservatee by

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establishing an oversight commission in Section 5. 372.

Lawrence A. Frolik & Melissa C. Brown, ADVISING THE ELDERLY OR DISABLED CLIENT, Rosenfeld Launer Publications, 910/920 Sylvan Avenue, Englewood Cliffs, N.J. 07632-9923 (1992 & Supp. 1993). [900 + pages with a 300-page supplement].

Chapter 17 deals with guardianship/conservatorship from its historic basis as well as its procedural matters, duties, and limitations. The author characterizes the Kansas statutory approach of dividing conservatorships from guardianships as a means to tailor a ward's (conservator's) particular needs, 17­17, providing a needed service in cases where a more restrictive guardianship of the person would "unduly interfere with the ward's personal autonomy." Good glossary. Indexed. Kansas statutes NOT included. Available for $135.

Lawrence A. Frolik & Richard L. Kaplan, ELDER LAW IN A NUTSHELL West Publishing Co. (1995). [429 pages].

As the name implies, a succinct but highly informative resource for general information in the elder law area. Chapter 9 focuses on guardianship and conservatorship. Chapter 16 covers elder abuse and includes "exploitation", the term used to describe financial abuse. It is especially helpful in discussing reasons why such abuse occurs.

Sally B. Hurme, STEPS TO ENHANCE GUARDIANSHIP MONITORING, American Bar Association, 1800 M Street, N.W., Washington, D.C. 20036 (1991). [89 pages + tables & charts].

This report was prepared by the Guardianship Monitoring Project, American Bar Association, Commission on the Mentally Disabled, 1800 M Street, N.W. Washington, D.C. 20036 (202)331-2240. Publication made possible by a grant from the State Justice Institute to the ABA's Fund for Justice and Education in 1991. Comprehensive report establishing the need for and a step-by-step approach to regular monitoring of guardianships.

Of special interest to Kansas lawyers is the report from the 28th Judicial District (Saline and Ottawa counties, Kansas) where the judge interviewed suggested that his lack of review of the guardianships in this rural area stemmed from his comfort in relying on "the community to bring to his attention any problems that might be happening to a ward." 89. Charts comparing the various state statutes at page

102. A definition of incapacity according to Kansas Statute is at 95.

Judicial Council of California, HANDBOOK FOR CONSERVATORS, Judicial Council of California, 303 Second St. South Tower, San Francisco, CA 94107-1366 (1992).

This work was recommended by Stuart D. Zimring to the "multiple recipients of list ELDERLAW" with the following comment: "The book is literally required reading for all conservators here. I think it is an excellent work; written in as plain English as one can get given the subject. It has forms, sample

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accountings, etc." While this author has not had the opportunity to review the work, Mr. Zimring's remarks are certainly glowing.

Zimring suggests that, within California, copies can be obtained for $20.00 from any Superior Court Clerk's office. Outside California, it can be ordered by writing: Handbook for Conservators, Judicial Council of California, Administrative Office of the Courts, Attn.: Ron Points, 303 Second St. South Tower, San Francisco, CA 94107-1366 (415) 396-9100. Please make checks for $23.00 to: State of California.

There is a companion videotape (less than 1 hour in length) prepared by the Alameda Bar Association that Mr. Zimring also recommends as "quite effective" and adds that he believes "that in northern California attending a screening of the video is mandatory before Letters will be issued." Order by calling (510) 893-7160. The tape costs $59.95.

Kansas Department on Aging, LEGAL ASSISTANCE FOR THE ELDERLY: A HANDBOOK FOR ATTORNEYS, KDOA, Docking State Office Bldg., 122-S, 915 S.W. Harrison, Topeka, Kan. 66612­1500 (Sept. 1990). [56 pages with Appendix].

The manual is designed to assist the private attorney in representing elderly clients. Guardianship and conservatorship is discussed in section E beginning on page 34. No mention is made of elder exploitation or of removal of a conservator for cause.

Kansas Department on Aging, LEGAL GUIDE FOR SENIOR CITIZENS, KDOA, Docking State Office Bldg., 122-S, 915 S.W. Harrison, Topeka, Kan. 66612-1500 (3d Ed. 1990) [60 pages].

Underwritten by KPL, this large print, indexed, work is geared toward senior citizens with a question and answer format. In the section entitled Your Rights, the issues of elder exploitation and conservatorships are addressed.

Pat M. Keith & Robbyn R. Wacker, OLDER WARDS AND THEIR GUARDIANS, Praeger Publishers, (1994). [230 pages].

An excellent 230-page resource exploring virtually every aspect of the guardianship process. The authors' empirical research, although not from Kansas, should have meaning to Kansans due to its proximity (Iowa, Missouri and Colorado). Chapters deal with literature review, assessing incapacity, characteristics of wards and their guardians, what it means to be a guardian, role strain, guardianship legislation, a comparison of guardian reform statutes in the three states, and recommended practices and outcomes for older prospective wards. The resource is indexed and includes a ten-page reference section for further reading.

Joan M. Krauskopf, Robert N. Brown, Karen L. Tokarz, Allan D. Bogutz, ELDERLAW: ADVOCACY FOR THE AGING, West Publishing, St. Paul Minn. (1993). [1137 pages, 2 volumes].

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This extensive work on virtually every issue affecting the elderly is indexed with tables. In chapter 9, the authors define conservatorship, ¤9.5, and provide a sample instructions to conservators that discusses conservator duties and responsibilities, ¤9.13. Discovery, ¤9.23, and preventing abuse and protecting the ward are also examined, ¤9.27. This is an excellent resource for lawyers working in the elder law area.

Jim Lackey, A GUIDE TO KANSAS LAWS ON GUARDIANSHIP AND CONSERVATORSHIP, Kansas Advocacy and Protective Services, Inc. (1995). [17 pages].

This succinct guide answers virtually every question about conservatorships in Kansas and is an indispensable guide for Kansas practitioners as well as the conservators they represent. Specifically identifies the functions and services of a conservator at ¤15 on page 11 and step-by-step procedures in ¤16 from pages 12 through 14. ¤18 discusses the termination of a conservator beginning at page 14. This is a handy, quick reference with an outline at the beginning to assist the reader in finding the appropriate sections. It is available through all KAPS offices.

Legal Counsel for the Elderly, DECISION-MAKING, INCAPACITY, AND THE ELDERLY, A PROTECTIVE SERVICES PRACTICE MANUAL, Legal Counsel for the Elderly , 601 E Street, N.W., Washington, D.C. 20049 or P.O. Box 96474, Washington, D.C. 20090-6474 (1987). [186 pages].

Chapters 6 deals with Guardianship and Conservatorships. Table 6 outlines the various guardianship statutes. There is an excellent discussion of Adult Protective Services in Chapter 7 with an insightful Chart outlining possible indicators of abuse, including financial abuse. A Table of Kansas Cases is on page 140 and Table of Kansas Authorities on page 170. The work is sponsored by AARP.

Legal Counsel for the Elderly, THE ELDERLY LAW MANUAL, Legal Counsel for the Elderly , 601 E Street, N.W., Washington, D.C. 20049 or P.O. Box 96474, Washington, D.C. 20090-6474 (1982 & Supp. 1983). [932 pages + 106 page supplement].

Sponsored by the National Retired Teachers Association and AARP, this two-volume work limits its scope to benefits programs for the elderly. It does NOT deal with guardianship/conservatorship.

Robert V. Mackey, GUARDIANSHIP AND THE PROTECTION OF INFANTS, Oceana Publications, Inc., Dobbs Ferry, N.Y. (1957). [94 pages].

This is the second edition of the earlier work on this topic, GUARDIANSHIP LAW, entry below. In light of the numerous reforms in this area of law, look to other sources for more current information.

Robert V. Mackey, GUARDIANSHIP LAW, Oceana Publications, Inc., Dobbs Ferry, N.Y. (1948). [67 pages].

This work is concise but outdated. I would not rely on the information presented.

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Harry S. Margolis, ELDERLAW FORMS MANUAL, Little, Brown and Co., Boston, Mass. (1996). [One volume, loose-leaf].

Meant to supplement the following entry, this three-ring binder provides sample forms for guardianship in Chapter 7. Anyone using these forms should check the Kansas statutes for accuracy in this jurisdiction.

Harry S. Margolis, General Ed., THE ELDERLAW PORTFOLIO SERIES, Little, Brown and Co., Boston, Mass. (1996). [1193 pages to date].

Designed in a 3-ring binder format, each section is independent of the others and released as completed. Reader should refer to Portfolio 7 for a complete discussion of guardian/ conservatorship. Also of interest is the author's treatment of guardianship/conservatorship over the former client. 1-20. A sample guardianship and conservatorship handout is presented at 1-43. Annex A1-6, 1-67, is an excellent summary of often confusing terms. Appendix 1-1 offers a listing of important resources for the elder lawyer. Although Kansas has yet to adopt it, the Uniform Guardianship and Protective Proceedings Act is reprinted at 7-54 and might be of interest. The page numbering system is confusing but the content is excellent. Available for $79.95. Forms in book are available on disc for $29.00. Both may be ordered by calling (800) 223-1940.

Linda Josephson Millman, LEGAL ISSUES AND OLDER ADULTS, ABC-CLIO, Inc., 130 Cremona Drive, P.O. Box 1911, Santa Barbara, Cal. 93116-1911 (1992). [273 pages].

A part of a series of works called Choices and Challenges, this book contains a section on personal autonomy for the older adult. The guardian/conservatorship process, discussed in general on pages 23­26, is easy to read (large print) and easy to understand. The book is indexed and contains a 120-page resource section on a variety of elder law issues.

National Senior Citizens Law Center, CURRENT ISSUES IN SENIOR LAW: A MANUAL FOR ATTORNEYS AND PARALEGAL ADVOCATES, NSCLC, 1815 H STREET, N.W., SUITE 700, WASHINGTON, D.C. 20006 (1994).

Two sections within this composite of writings on elder law issues are relevant. A. Frank Johns, Vicki Gottlich and Marlis Carson deal with problems of jurisdiction in guardianship/ conservatorship cases in their article, "Guardianship Jurisdiction Revisited: A Proposal for a Uniform Act." 89. Such problems occur in instances when the proposed ward/conservatee has ties to more than one state. The authors propose that a uniform guardianship jurisdiction act, much like the Uniform Child Custody Jurisdiction Act, be adopted to protect incapacitated adults (not just elders) from jurisdictional conflict of laws and over-reaching by the courts.

In "The Role of Counsel in Adult Guardianship Proceedings," 183, Vicki Gottlich explores the role of

the attorney--"zealous advocate?" or guardian ad litem?--who represents the proposed ward/conservatee in guardianship/conservatorship actions. The author compares numerous statutes (not Kansas) and concludes that many state statutes need to be revised to include durable powers of attorney (as alternatives to guardianship/conservatorship) and a guarantee that the proposed ward/conservatee is both present at the initial hearing and represented by counsel.

National Senior Citizens Law Center, REPRESENTING OLDER PERSONS: AN ADVOCATES MANUAL, NSCLC, 1815 H Street, N.W., Suite 700, Washington, D.C. 20006 (1990 Ed.). [142 pages].

Vicki Gottlich focuses on the problems inherent in our system in Guardianships and their Alternatives: Legal Services and the Role of the Advocate. She addresses the current trends and developments in the area as well the role of the attorney in the process.

Note: the 1985 edition covers virtually the same topic beginning on page 77. The author of that article is Neal Dudovitz.

James T. O'Reilly, THE LAWYER'S GUIDE TO ELDER INJURY AND ACCIDENT COMPENSATION, American Bar Association, 750 North Lake Shore Drive, Chicago, Ill. 60611 (1995). [284 pages].

An unlikely source, this work provides interesting insight into elder abuse and exploitation in Chapter

13.

John J. Regan, THE AGING CLIENT AND THE LAW, Columbia University Press, New York, N.Y. (1990). [143 pages].

Chapter 9 deals with intervention for the frail elderly and discusses the various points where exploitation can arise. A checklist for evaluating an elderly client's capabilities is at 126.

John J. Regan, J.S.D., YOUR LEGAL RIGHTS IN LATER LIFE, Scott, Foresman and Co., Glenview, Ill. (1989). [321 pages].

Author merely mentions that the court can remove a guardian/conservator who fails to perform his or her duties properly. 239. Resource is written in an understandable question and answer format.

Nancy Schmidt Roush, KANSAS ESTATE ADMINISTRATION HANDBOOK, 6th Edition, Kansas Bar Association, P.O. Box 1037, Topeka, Kan. 66601 (1993). [One volume, loose-leaf].

A must for Kansas practitioners, this supplemented handbook includes forms to use for submitting the annual report for a guardian and the verified accounting of a conservator.

Winsor C. Schmidt, Jr., GUARDIANSHIP: THE COURT OF LAST RESORT, Carolina Academic

Press, Durham, N.C. (1995). [270 pages].

As the title implies, this work takes a fairly cynical look at guardianships for the elderly (conservatorships are included by implication). He indicates that while Kansas and several other states require that alleged incompetents receive legal representation, in fact only 75-90% actually are represented. The incidence of limited guardianship in four states (Cal., Ind., Kan. and Mich.) is 3% or less. 237. The author suggests that Kansas statutes do not have any provision for public guardianship. 64­

65. Chapters of particular interest to Kansas lawyers are Chapter 9, Recommended Judicial Practices in Guardianship: Proceedings for the Elderly, and Chapter 8, Accountability of Lawyers in Serving Vulnerable, Elderly Clients.

Winsor C. Schmidt, PUBLIC GUARDIANSHIP AND THE ELDERLY, Ballinger Publishing Company, Cambridge, Mass. (1981). [ 268 pages].

This indexed work compares and analyzes current (as of 1981) state public guardianship statutes.

Irving J. Sloan, RIGHTS & REMEDIES FOR SENIOR CITIZENS, LAW FOR THE LAY PERSON, Oceana Publications, Inc., Dobbs Ferry, N.Y. (1992). [160 pages].

Including a definition of exploitation on page 93, this work explores the causes of exploitation, adult protective services laws, the role of the public agency and the least restrictive alternative. The author concludes that advocates for the protection of the elderly whose lives are in danger due to exploitation must use current laws as they exist to accomplish their objective. Appendices list resources lay people can turn to for assistance, including: Congressional committees, regional and state offices of aging, national legal organizations, agencies and organizations, and lawyer referral services.

Peter J. Strauss, Robert Wolf and Dana Shilling, AGING AND THE LAW, 1991 SUPPLEMENT, Commerce Clearing House, Inc., 4025 West Peterson Avenue Chicago, Ill. 60646 (1990 and supp. 1992). [892 pages + 318 page supplement].

Chapter 17 provides excellent discussion of the various protective services in the Uniform Probate Code and provisions in state statutes. Kansas is listed at 361. Guardianship and Conservatorship laws are compared with special notice of what the author feels is positive about each jurisdiction's statutes. Kansas is mentioned at 399. Readers interested in case law from other states should turn to page 415. Guardianship/conservatorship as it relates to divorce is covered. Removal of guardians/conservators is addressed specifically at 424.

Supplement Chapter 5, 115-132, deals with adult protective services and cites recently revised statutes and recent cases that wrestle with the balancing of autonomy of and protection for the individual within the guardian/conservatorship process. No citations from Kansas are listed. Available for $100.00 by calling (800) 248-3248.

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Hasseltine Byrd Taylor, LAW OF GUARDIAN AND WARD, University of Chicago Press, Chicago, Ill. (1935). [194 pages].

Written over sixty years ago, this treatise provides a good look back at the guardian/conservatorship process. The work is indexed.

Johnathan A. Weiss, Ed., LAW OF THE ELDERLY, Practicing Law Institute, 810 Seventh Ave., New York, N.Y. 10019 (1977). [383 pages].

Chapter 10, Protective Services for the Elderly: The Limits of Parens Patriae, written by Peter M. Horstman, explores in depth the guardianship process, its pitfalls and its consequences for the elderly ward. Available for $25.00. Order # D3-0141.

William R. Wishard, LL.B., RIGHTS OF THE ELDERLY & RETIRED: A PEOPLES' HANDBOOK, Cragmont Publications, P.O. Box 27496, San Francisco, Cal. 94127 (1978). [237 pages].

The author discusses conservatorship as a means of safeguarding the elderly person and his/her estate "without the stigma of incompetency." This characterization is misleading for residents of Kansas because a finding of incompetence is required before a conservator may be appointed by a Kansas court.

J. G. Woerner, A TREATISE ON THE AMERICAN LAW OF GUARDIANSHIP OF MINORS AND PERSONS OF UNSOUND MIND, Little, Brown & Company, Boston, Mass. (1897). [581 pages].

Part II of the treatise deals with guardianship over persons of unsound mind (as compared with minors) meaning all who are mentally incapable to protect themselves. Gives good historical background to early Kansas law citing general statutes of 1889. This work is not relevant to current concerns. The work is indexed.

Journals

Of Special Note: The Elder Law Journal, published by the University of Illinois College of Law, University of Illinois at Urbana-Champaign, 504 East Pennsylvania Avenue, Champaign, IL 61820, began publishing in 1993. Is available for $25.00 per volume year (spring and fall).

Alison P. Barnes, Beyond Guardianship Reform: A Revaluation of Autonomy and Beneficence for a System of Principled Decision-making in Long Term Care, 41 Emory Law Journal 633 (1992).

An extensive evaluation of guardianships. The author advocates a unified system of proxy decision-making, the use of limited guardianships, strict adherence to due process requirements, and oversight.

A. Paul Blunt, Financial Exploitation of the Incapacitated: Investigation and Remedies, 5 Journal of

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Elder Abuse and Neglect 19 (1993).

Citing financial exploitation as one of the most permanently devastating and overlooked forms of elder abuse, the author believes that the observation of symptoms and patterns of behavior in the elderly will assist practitioners in the identification of the many forms exploitation may take. Investigative techniques using documents can assure that cases can be brought to the attention of the appropriate authorities and judicial and non-judicial remedies can be explored.

Lawrence A. Frolik, Abusive Guardians and the Need for Judicial Supervision, 130 Trusts & Estates 41 (July 1991).

While this article focuses on the physical abuse and neglect of the elderly, the solutions recommended-­written and/or videotaped materials and qualified personnel to assist the guardian, guardian "hotlines," better judicial supervision including more thorough review of periodic reports, and court visitors--could be equally effective in preventing financial exploitation.

Vicki Gottlich, Zealous Advocacy for the Defendant in Adult Guardianship, 29 Clearinghouse Review 879 (Jan. 1996).

This article was not reviewed because the publication was at the binders and not available until 5/21/96.

Paula L. Hannaford & Thomas L. Hafemeister, The National Probate Court Standards: The Role of the Courts in Guardianship and Conservatorship Proceedings, 2 Elder Law 147 (Fall 1994).

The authors provide an in depth look at the Standards which were published in 1994 with the following purposes in mind: ensuring that the elderly receive the services that they need, protecting them from unwarranted restrictions on their freedom and autonomy, and responsibly maximizing and conserving the resources of the judiciary. 149.

Penelope A. Hommel, Lauren Barritt Lisi, Model Standards for Guardianship: Ensuring Quality Surrogate Decision Making Services, 23 Clearinghouse Review 433 (Summer 1989).

This article focuses not on the need for guardians but on the need for standards for guardians once they are appointed. With the increase in agency and professional service providers--both public and private, nonprofit and for-profit--receiving compensation, studies show an increase in exploitation. The authors advocate the adoption of the model standards released by the Subcommittee on Housing and Consumer Interests, House Select Commission on Aging, 100th Congress, 2d Session, Surrogate Decisionmaking for Adults: Model Standards to Ensure Quality Guardianship and Representative Payeeship Services, A Report Presented by the Chairman (Comm. Print 100-705) (1988). The Standards are presented and discussed in depth.

Peter M. Horstman, Protective Services for the Elderly: The Limits of Parens Patriae, 40 Missouri

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Law Review 215 (1975).

Included in LAW OF THE ELDERLY, Practicing Law Institute, supra p. 35, this article explores in depth the guardianship process, its pitfalls and its consequences for the elderly ward.

Sally B. Hurme, Limited Guardianship: Its Implementation Is Long Overdue, 28 Clearinghouse Review 660 (Oct. 1994).

A proponent of limited guardianships, the author reviews the history of tailored orders, summarizes recent legislative efforts and supportive appellate decisions in the various jurisdictions, and points out that its implementation is lagging far behind.

Kansas is classified as a "moderate tailoring" state in Table A at 664, yet according to a 1994 survey, only utilizes its power to tailor in 1% of the guardianships that come before a Manhattan, Kansas court.

666. The author explores possible barriers to the implementation of tailored orders and cites judicial reluctance as a primary cause. 667. A good explanation of how limited orders work as well as proposed steps for advocates conclude the article.

The work is very interesting reading for those who support the "least restrictive" means to protect an elderly person.

A. Frank Johns, Vicki Gottlich and Marlis Carson, Guardianship Jurisdiction Revisited: A Proposal for a Uniform Act, 26 Clearinghouse Review 647 (Oct. 1992).

Included in National Senior Citizens Law Center, CURRENT ISSUES IN SENIOR LAW: A MANUAL FOR ATTORNEYS AND PARALEGAL ADVOCATES, supra p. 31, dealing with problems of jurisdiction in guardianship/conservatorship cases where the proposed ward/conservatee has ties to more than one state. The authors propose that a uniform guardianship jurisdiction act, much like the Uniform Child Custody Jurisdiction Act, be adopted to protect incapacitated adults (not just elders) from jurisdictional conflict of laws and over-reaching by the courts. Lists Kansas as the only state to follow the Restatement (Second) Conflict of Laws in its treatment of guardianship jurisdiction, which gives the courts power to exercise jurisdiction when the incapacitated adult is "domiciled" or simply "present" in the state. 648.

Margaret K. Krasik, The Lights of Science and Experience: Historical Perspectives on Legal Attitudes toward the Role of Medical Expertise in Guardianship of the Elderly, 33 American Journal of Legal History 201 (July 1989).

This article provides a thorough review of the history of guardianship.

Clifton B. Kruse, Jr., Contracts to Devise or Gift Property in Exchange for Lifetime Home Care-­Latent and Insidious Abuse of Older Persons, 12 Probate Law Journal 1 (1994).

The article explores an all too common problem where an elder trades or gives away assets in exchange for the promise from a caretaker that he/she will not be institutionalized or "will always be taken care of."

Lauren B. Lisi and Anne M. Burns, Mediation in Guardianship Cases: A Promising Alliance, 26 Clearinghouse Review 644 (Oct. 1993).

The authors discuss the Guardianship Mediation Project sponsored by the Center for Social Gerontology and funded by the National Institute for Dispute Resolution. There are many advantages to mediation in the adult guardianship process. Mediation can offer a way for parties to explore solutions that will meet the needs of the older or disabled adult with minimal limitations on autonomy. 645.

Susan Miler and Sally B. Hurme, Guardianship Monitoring: An Advocate's Role, 25 Clearinghouse Review 654 (Oct. 1991).

The problem of lack of supervision of guardianships/conservatorships is explored. The authors conclude that more monitoring is necessary. Proposed solutions include the use of volunteers to serve in the capacity of court visitor, court auditor or record researchers. A pilot project utilizing each of the above have shown positive results. An unscrupulous attorney or conservator familiar with the backlog in a particular court may take advantage of slow or superficial monitoring to charge unduly large fees or make transactions that are not permissible without court review. 657. The authors encourage advocates for the elderly to join forces to improve guardianship procedures. 661.

Annina M. Mitchell, Involuntary Guardianship for Incompetents: A Strategy for Legal Services Advocates, 12 Clearinghouse Review 451 (Dec. 1978).

The focus of this article is on mental incompetency, regardless of age. The author points to the same pitfalls in the guardianship process that are encountered by the elderly and notes that if the guardianship/ conservatorship was due to a condition created by advanced years, it is unlikely that the ward/ conservatee would ever be able to persuade a court that the reason for the guardian/conservatorship had disappeared. 455 at n. 42. She cautions against the use one's status as the key element for determining incompetence. 456. Written before many of the protective statutes were enacted, the article gives many vivid examples of abuse of the elderly.

Ken Ransford, Financial Abuse of Elderly Adults, 23 The Colorado Lawyer 1077 (1994).

While stressing Colorado's reporting statute, the article has merit for Kansans who deal with "at-risk" adults, defined as "any individual at least eighteen years of age who is susceptible to mistreatment and lacks sufficient understanding to make responsible decisions regarding his or her affairs." Colorado has a toll-free number to report elder abuse, an interesting approach.

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Of special interest is a list of common fact patterns that may indicate financial abuse of an elderly adult, 1077-8, and steps an attorney can take to protect an elderly client from such abuse.

Winsor C. Schmidt, Quantitative Information about the Quality of the Guardianship System: Toward the Next Generation of Guardianship Research, 10 Probate Law Journal 61 (1990).

The author summarized twelve studies of the guardianship process from around the country and concluded that older people under guardianship do not seem particularly homogeneous. 79.

Michael R. Schuster & Bruce B. Vignery, Surrogate Decisionmaking under the Omnibus Budget Reconciliation Act of 1987: A Flawed Remedy?, 24 Clearinghouse Review 572 (Oct. 1990).

Setting out a fictitious scenario, the author raises questions about surrogate decisionmaking which arise under OBRA-87. He cautions that guardianship/conservatorship should be utilized only as a last resort.

573.

Roger B. Sherman, Guardianship: Time for Reassessment, 49 Fordham Law Review 350 (1980).

This article outlines the procedural safeguards that should exist at a guardianship hearing, argues that the guardian should be permitted to perform only those functions that the proposed ward is clearly incapable of performing, and that the guardian should develop a treatment plan to assist the ward in overcoming the deficiency which necessitated the appointment. 351-2. Very interesting reading.

Peter J. Strauss, Before Guardianship: Abuse of Patient Rights Behind Closed Doors, 41 Emory Law Journal 761 (1992).

A practicing lawyer in the area of guardianships for twelve years, Strauss points to what he calls a "flaw in the guardianship process." The attorney who is appointed by the court to protect the ward, generally turns out to be an officer of the court whose role is to determine the best interests of the ward. This forces the attorney into a conflict of interest position.

Phillip B. Tor & Bruce D. Sales, A Social Science Perspective on the Law of Guardianship: Directions for Improving the Process and Practice, 18 Law & Psychology Review 1 (1994).

This article was not reviewed because the publication was at the binders and not available until 6/4/96.

Lu-in Wang, Anne M. Burns, Penelope A. Hommel, Trends in Guardianship Reform: Roles and Responsibilities of Legal Advocates, 24 Clearinghouse Review 561 (Oct. 1990).

While the elderly often face a comprehensive loss of rights, due process protections have often been inadequate. 561. Citing the trend in legislative reform as moving from paternalism to individual autonomy, the authors identify the change in definition of incapacity which focuses on functional

capacities and incapacities and the preference for limited guardianships. Id. While the new guardianship laws are a start, advocates must continue to advance the rights and interests of their proposed wards/ conservatees. 567.

Erica Wood, Lori A. Steigel, Charles P. Sabatino, Stephanie Edelstein, Overview of 1992 State Law Changes in Guardianship, Durable Powers of Attorney, Health-care Decisions, and Home Equity Mortgages, 26 Clearinghouse Review 1277 (Jan. 1993).

Reviews pertinent law changes in the identified areas. Kansas is not mentioned.

George H. Zimny, Barbara J. Gilchrist, George T. Grossberg, Sung Chung, Annual Reports by Guardians and Conservators to Probate Courts, 3 Journal of Elder Abuse & Neglect 61 (1991).

Since the powers granted to guardians/conservators by the courts may be used to abuse rather than to protect wards/conservatees, the guardianship statute in Missouri and some other states (including Kansas) requires annual reports by guardians and a review of the report by the court. To study the reporting/reviewing process, public court records were examined. It was found that while all 318 financial reports due were filed, only 52 of the 318 personal status reports due were filed. In addition, the financial reports were thoroughly reviewed by the courts or their representatives but the status reports were not. Special attention to status reports is necessary to strengthen the protective function of guardianship.

Student Written Law Reviews

Comment, Garry J. McCubbin, Conservatorship: Mentally Competent Voluntary Conservatee Forfeits Power to Contract, 19 Washburn Law Journal 572 (1980).

The author discusses rights retained by a voluntary conservatee in light of Nolte and Mayberry, and concludes that a voluntary conservatee does not retain the power to contract. He cautions third parties regarding their dealings with conservatees, unless their conservators and, where required, the courts approve the transactions. 579.

Note, Mandatory Reporting of Elder Abuse: A Cheap but Ineffective Solution to the Problem, 14 Fordham Urban Law Journal, 723 (1986).

Providing a critical review of the mandatory reporting statutes in most jurisdictions, the author speaks out against New York's adopting such a statute. The author concludes that these statutes do more harm than good for the elderly, increasing age discrimination in society, limiting the elder's freedom to control his or her own life, and providing an ineffective response to the problem which precludes the adoption of more effective measures. 734.

Bibliographies

Brian Raphael, Wendy Nobunaga, and Lisi Moske, Gerontology and the Law: A Selected Bibliography 1991-94 Update, 69 Southern California Law Review 287 (Nov. 1995).

An update of a bibliography previously published in 1980, this 153-page bibliography is an extensive list of books, reports and articles of potential interest to those who work in the field(s) of gerontology and the law. Sections on guardianships and elder abuse are included.

Edward Stanek, The Elderly in Modern Society, Their Legal Status & Human Rights: A Select Bibliography, Public Administration Series Bibliography # P 2610 (Mar. 1989).

This 15-page bibliography was available at the time of publishing for $3.75 through: Vance Bibliographies P.O. Box 229, Monticello, Ill. 61856.

Newsletters

American Association of Retired Persons (AARP), ELDERLAW EXPRESS, Legal Counsel for the Elderly, Inc., Washington, D.C.

This regular publication features articles of interest to those who represent our elder population in their legal matters. Its Legal Program Coordinator is Ayn Hartman Crawley and its Publication Coordinator is Sally B. Hurme. The "Express" is available through the AARP, 601 E Street, N.W., Washington, D.C. 20049. Telephone: 202/434-2151.

American Bar Association, Mental & Physical Disability Law Reporter, 1800 M Street N.W., Washington, D.C. 20036-5886.

Published bi-monthly, the magazine covers a range of mental and physical disability issues, contains updates of state statutes and developments in regulations, and discusses recent case law. Available for $185.00 by calling (202) 331-2240.

Harry S. Margolis, Ed., The Elderlaw Report, Little, Brown and Co., 34 Beacon Street, Boston, Mass. 02108.

Published eleven times per year, the newsletter contains practice tips, book reviews, and articles on a wide range of elder law topics. Available for $99.00 per year by calling (617) 859-5573.

Newspaper and magazine articles

Fred Bayles & Scott McCartney, Guardianship of the Elderly: An Ailing System 1, Associated Press

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Special Report, Sept. 1987.

When 2,200 guardian files nationwide were reviewed it was found that in 44%, the proposed ward had NO representation, in 49% of the cases the proposed ward was NOT at the hearing, and in 25% of the cases NO hearing was held.

Denise M. Tolpolnicki, The Gulag of Guardianship, Money Magazine, Mar. 1989 140.

This article provides an excellent discussion of the problem of financial exploitation of the elderly, complete with examples, successful programs for assisting the elderly with money management without guardianship/conservatorship, standards for guardian/conservators, suggested safeguards once a guardianship/conservatorship has been appointed, and an overview of the law in the 50 states.

Videos

Legal Counsel for the Elderly, Inc., What Do I Do Now? Tips for Guardians

While this author was not able to review this video, publicity describes the product as an 8-minute VHS video for new guardians. The video is NOT a list of do's or don'ts. It is a true-to-life vignette designed to encourage new guardians to ask questions and seek support services to better care for their wards. Video comes with 200 Client Guides for use with groups. Available for $15.00 from Legal Counsel for the Elderly, Inc. P.O. Box 96474, Washington, D.C. 20090-6474.

Other Sources

5 Bancroft's Probate Practice (2d Ed. and 1973 Supp.), Bancroft-Whitney, San Francisco, Cal. (1950). [Indexed].

                  ¤ 1439, 413. Removal of Guardian--In General.

                  ¤ 1440, 415. Temporary Removal, Suspension or Injunction.

                  ¤ 1441, 416. Grounds.

                  ¤¤ 1444-50, 427-438. Liabilities of Guardians.

                  Kansas law is not covered by this six volume work, and the discussions are not particularly relevant in light of the numerous changes in statutes.

 

Samuel E. Bartlett, 2 Bartlett Kansas Probate Law and Practice, Vernon Law Book Co., Kansas City, MO (Rev. Ed. 1953).

                  Chapter 43 Guardianship.

                  Chapter 55 Guardianship Proceedings.

                  Once the "Bible" of Kansas law in this area, the work is mainly of historical interest. It does

 

contain pertinent Kansas cases prior to 1953.

Conferences

American Bar Association, National Conference of the Judiciary on Guardianship Proceedings for the Elderly (1986).

Practicing Law Institute, Elder Law Institute: Representing the Elderly Client of Modest Means, Co­chairs Barbara J. Collins and William A. Dombi (June 1995).

Section IV, submitted by Michael R. Schuster, is a reprint of Protective Services Training Module, produced by Legal Counsel for the Elderly, 601 E Street, N.W., Washington, D.C. 20049, (202) 434­2120. This comprehensive work was made possible by a grant from the Administration on Aging, Department of Health and Human Service in 1992. It contains numerous Advocacy Tips and suggests that when dealing with the elderly, one should look to the "least restrictive alternative" to meet the "actual needs of the ward." The article strongly advocates the use of limited guardian/conservatorships.

Associations and Agencies

American Bar Association Commission on Legal Problems for the Elderly

1800 M Street, N.W.
Washington, D.C. 20036.
Parent organization of NAELA, below, the Commission deals with issues affecting the elderly.

Kansas Department on Aging

Docking State Office Building, 150 915 S.W. Harrison Topeka, Kansas 66612 Phone: (913) 296-4986 Toll free: 1-800-432-3535 TDD: 1-800-766-3777

National Academy of Elder Law Attorneys

655 N. Alvernon Way, Suite 108 Tucson, Arizona 85711 Phone: (602) 881-4005 $175.00 annual dues. Services include a directory of elder law attorneys nationwide, newsletter, regional seminars, adoption of public policy resolutions, surveys and information of interest to membership.

National Guardianship Association

1604 N. Country Club Road Tucson, Arizona 85716-3195

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                  (520) 881-6561

                  (520) 325-7925 (FAX)
(Annual dues for attorneys are $125.00 per year. Membership includes attorneys, professional guardians,
and interested persons.

 

Internet and Email Sites

http://www.ELDERLAW@LISTSERV.ARIZONA.EDU (open only to members of the National Academy of Elder Law Attorneys)

ELDERLAW@LISTSERV.ARIZONA.EDU

neln.org Index Page: Elder Abuse and Neglect

neln.org Index Page: Nursing Homes and the Rights of Residents

neln.org Bibliography: Elder Abuse in the Institutional Setting (Christine L. McDaniel, 05/97)

neln.org Bibliography: Elder Abuse Prosecution and Prevention (A Layperson's Perspective) (Mark Kiefer, 12/00)

 

Index Introduction | Definitions | Scope of the Problem | State Response | Other Possible Solutions | Statutes | Cases | Legislative Materials | Administrative and Executive Materials | Secondary Materialshttp://www.neln.org/bibs/sampson.html (37 of 37)11/7/2007 9:11:27 PM