Conservator takes $1 Million from mom’s estate: successor conservator sues prior’s attorney for malpractice (October 17, 2014)

Guardianship litigation is exploding and not just in Palm Beach County.  Here  is a recent, October 17, 2014 guardianship case involving mis appropriating $1 Million, the removal of a guardian and a malpractice lawsuit against the prior guardian’s probate lawyers.  If you are involved in a guardianship matter and believe that the guardian may be taking money or not doing things properly, you may want to read this case.

What is a conservator of a person or property?

• In Palm Beach County, Florida, guardianships are not just for minors
• Elder law attorneys Palm Beach will tell you that the cases of adult guardianships are rising
• A guardianship in Florida is where someone files a petition with the probate court asking that somebody make decisions for a person who is believed to be incapacitated
• If your mom or dad has progressive dementia, they may need someone to assist.   Who can make decisions for them?  Are they unable to make their own decisions on some, or only a few, matters?
• If they don’t have a power of attorney or revocable living trust, a guardian may be appropriate to help them and protect their money.  Their money and property is referred to as the guardianship estate
• The court appointed guardian may have to post a bond, needs a probate lawyer, and has to account and report to the probate court in Palm Beach
• A guardian may be appointed by a probate court judge
• Guardianship cases are heard in the probate courts of Delray Beach, West Palm Beach and Palm Beach Gardens
• In some other states, they refer to a person who makes decisions for another, or a court appointed guardian, as a conservator.  A conservator may be appointed by a probate court, just like a Florida guardian, to help someone with either personal decisions or financial decisions.

Can you sue the prior conservator’s lawyers for malpractice?

• This recent California conservator case asks whether a successor conservator can suethe prior conservator’s lawyers for malpractice
• This recent case is called Stine v. Dell’Osso and is from the Court of Appeal, First District, Division 1, California, Judge Banke wrote the opinion
• 2014WL 5293521, Case A 137679
• This probate appeal or guardianship appeal ruled that the successor trustee could sue the prior conservator’s attorneys for malpractice
• 2002: David was appointed the conservator of his mother, Donna
• David the conservator hired a probate lawyer to help him
• All of the mother’s assets were held in a trust–supposedly
• Actually there was an IRA, real estate which were “significant”
• Evidently, the probate lawyers knew that the conservator gathered or marshalled assets of the mother but David did not report them to the probate court; these assets should have been assets of the conservatorship and subject to the oversight of the probate court
• David mis appropriated over $1 Milllion and was removed as conservator
• The new conservator, or the successor guardian, wanted to sue David’s lawyers
• The new conservator sued David for conversion and financial elder abuse