We want to believe that, should we ever become incapacitated, the people we trust to protect us will behave honorably. A recent California court decision shows that, unfortunately, this is not always the case.
Houston residents young and old should heed the court’s warning in this case, which it described as a “textbook” example of a fiduciary relationship gone wrong. The case concerned an elderly woman and her son. The son was his mother’s durable power of attorney. In this role, he had broad rights to manage his mother’s property once she became incapacitated in her advanced age. The mother had a separate conservator of her person and estate.
In Texas, the role of a conservator (or guardian) of a person’s estate is comprehensive. Such a conservator has authority over their ward’s physical care, including the ability to make decisions about their education, residence, medical treatment, and even their daily activities. They also control their ward’s financial decisions, including both long-term and day-to-day management of money, personal property, and real estate. Clearly, conservatorships and guardianships can be ripe for fraud and abuse.
In this case, the court concluded that the son had misappropriated a substantial amount of his mother’s assets. Moreover, over a period of several years, he repeatedly failed to go to court to make an accounting of his mother’s estate. The conservator in this case accrued over $100,000 in legal fees in an attempt to obtain the accounting, which she presumably expected would result in the son being required to pay back money to the estate.
When all was said and done, the trial court in this case ordered the son to pay back the misappropriated money, along with a sizeable sanction. On appeal, the higher court left the orders in place.
Perhaps, the legal fees and protracted court battle could have been avoided had the mother made a different choice for her power of attorney. Had the son been appointed conservator, however, this case and its impact on the mother’s wellbeing might have been far worse.
Clearly, the choice of whom to appoint as a durable power of attorney is critical. Moreover, those who wish to avoid the whim of a potentially abusive conservator would be prudent to use available legal methods to avoid a court appointment of one. Trusts and estates lawyers can help Texas residents plan accordingly to protect their financial and personal futures.
Consult an Experienced Texas Trusts and Estates Lawyer
Most of us hope to live long enough that we will someday need assistance in our day-to-day living. For some, old age may warrant a durable power of attorney or even a guardian of person and estate. Do not take the risk that those charged with protecting you will abuse that responsibility. The Houston estate planning lawyers at McCulloch & Miller, PLLC are trained to protect people like you from these abuses. With decades of experience with disability pre-planning in Houston, you can trust us to help you plan your financial and personal future with appropriate care and foresight. Dial 713-333-8900 to schedule a free, no-obligation consultation with one of our attorneys today.