Fiduciary Fiasco

Just as a plan of battle never survives first contact with the enemy, estate plans often fall apart in the crucible of the probate process.  Sometimes these meltdowns can be avoided by properly drafting legal documents, but there are times when it is not the plan, but the people, causing matters to go from bad to catastrophic.  A few years ago a client came to me because he was being sued for attorney fees amounting to six figures.

My client had seen me several years earlier when he and his siblings were butting heads over who would be in charge of the mother’s affairs.  He did not hire me then, but he was back because the matter had become a nasty affair in probate court.

My client’s mother was a widow with four children.  Two wanted the mother in a western state in an assisted-living facility.  The others wanted her in a nursing home in Michigan.  She had gone west for a visit and her son had settled her in an ALF and opened guardianship.  Two of the three Michigan siblings, a daughter and another son, went to the western state to contest the guardianship and bring her back to Michigan.  They were successful in moving the mother and her legal matter back to Michigan.

Since the siblings were at loggerheads, the Michigan judge appointed an attorney to act as guardian and conservator (a conservator is in charge of the person’s financial estate).  The siblings then started trying to get the attorney dislodged as fiduciary.  They blew over $300,000 on court costs and attorney’s fees.  The conservator and the court wanted my client to pay a large part of that.  He disagreed and hired me to contest the sanctions against him.  It was a sad situation for all of the family.  By the time the mother died, after years of legal wrangling, her estate had declined from around $850,000 to less than $400,000.

If the mother had foreseen the sibling conflict, she might have used a living trust and power of attorney to establish who would be in charge of her person and estate.  Although this may have discouraged other sons and her daughter from going to court to establish guardianship and conservatorship, some family conflicts cannot be resolved except by a judge.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2012 John B. Payne, Attorney