conservatorship surcharge

[alicewonderland]

What is the name of your state (only U.S. law)? california
in the state of california. can you file a petition to surcharge a conservator for breach of fiduciary duty for losses to the estate in a probate conservatorship if the Final Accounting has been approved? Or do you need to petition to reopen final accounting first?

 

[tranquility]

A breach of fiduciary duty is not related to the accounting. It does not really matter to the damages if an accounting has been approved or not.

 

[alicewonderland]

thank you
here is where i get confused. if the final accounting is approved by judge's order....can you still surcharge if it says it releases the representative as in 7250? or do you need to petition to reopen the final accounting first?




7250. (a) When a judgment or order made pursuant to the provisions
of this code concerning the administration of the decedent's estate
becomes final, it releases the personal representative and the
sureties from all claims of the heirs or devisees and of any persons
affected thereby based upon any act or omission directly authorized,
approved, or confirmed in the judgment or order. For the purposes of
this section, "order" includes an order settling an account of the
personal representative, whether an interim or final account.
(b) Nothing in this section affects any order, judgment, or decree
made, or any action taken, before July 1, 1988. The validity of any
action taken before July 1, 1988, is determined by the applicable law
in effect before July 1, 1988, and not by this section.
(c) This section shall not apply where the judgment or order is
obtained by fraud or conspiracy or by misrepresentation contained in
the petition or account or in the judgment as to any material fact.
For purposes of this subdivision, misrepresentation includes, but
shall not be limited to, the omission of a material fact.






2333. (a) In case of a breach of a condition of the bond, an action
may be brought against the sureties on the bond for the use and
benefit of the ward or conservatee or of any person interested in the
estate.
(b) No action may be maintained against the sureties on the bond
unless commenced within four years from the discharge or removal of
the guardian or conservator or within four years from the date the
order surcharging the guardian or conservator becomes final,
whichever is later.
(c) In any case, and notwithstanding subdivision (b) of Section
2103, no action may be maintained against the sureties on the bond
unless the action commences within six years from the date the
judgment under Section 2103 or the later of the orders under
subdivision (b) of this section becomes final.

 

[tranquility]

You would have to make a motion to the court alleging the facts which are the fiduciary breach. What happened? It looks to me like a fiduciary breach would fall under (c), but, maybe not. What are the facts?

 

[alicewonderland]

1.failure to make any effort to locate and recover money stolen from conservatee immediately prior to conservatorship (given evidence and was within their capability to recover)

2.Failure to inventory, protect, and insure contents of apartment at asst living. Items were stolen and asst living assumes no responsibility.

3. Failure to marshal a bank account- non interest account had $20,000 that just sat there.

4.Failure to make any effort to recover contents of house est val $100,000 that were stolen. Failure to even file a claim with insurance co.

5. failure to credit estate for conservatees money placed in pooled account with county.

6. placed ab trust money into totten pay on death account
in order to have it considered a conservatorship estate asset which they could then charge fees for conserving. (trust assets not part of conservatorship account and handled by trust)

7. aid an attorney $3,000.00 without court approval, a fee that was contested.

8. ut $150,000 in a pay on death account 6 months after death and then would not remove their name as conservator from account so it could be released to beneficiary (not in an interst account for 600 days)

9. made no effort to recover a $75,000 "gift" obtained by undue influence/conservatee lacked mental capacity...

10. misfiled or failed to file taxes.

can you petition to surcharge these type of things if the final accounting is approved?

can you petition to surcharge these type of things if the conservator has been discharged and released bond?

at the resent the accounting has been approved and they are pushing to be discharged.

 

[tranquility]

I would say you have a case for the money in an non-interest bearing account, unless there was a stated need for liquid funds to pay bills. Even then, interest is pretty close to noting so the damages would be small.

Also, failure to file an insurance claim when the household items were stolen. I can think of defenses, but don't know the facts.

1.failure to make any effort to locate and recover money stolen from conservatee immediately prior to conservatorship (given evidence and was within their capability to recover)

I don't think that would be a duty.

2.Failure to inventory, protect, and insure contents of apartment at asst living. Items were stolen and asst living assumes no responsibility.

Insurance would usually be required, as would an "inventory" or knowledge of what was generally there. But, unless the value of the items were great, there would be no damages.

4.Failure to make any effort to recover contents of house est val $100,000 that were stolen.

Beyond making a police report and using an attorney if the thief were proven, no.

5. failure to credit estate for conservatees money placed in pooled account with county.

Huh?

6. placed ab trust money into totten pay on death account
in order to have it considered a conservatorship estate asset which they could then charge fees for conserving. (trust assets not part of conservatorship account and handled by trust)

Maybe. But, if they had the power as trustee, no. You would never be able to prove the reason.

7. aid an attorney $3,000.00 without court approval, a fee that was contested.

This would clearly be closed with the accounting.

8. ut $150,000 in a pay on death account 6 months after death and then would not remove their name as conservator from account so it could be released to beneficiary (not in an interst account for 600 days)

Beneficiary's duty.

9. made no effort to recover a $75,000 "gift" obtained by undue influence/conservatee lacked mental capacity...

Nope.

10. misfiled or failed to file taxes.

Absolutely. What are the damages?

Look, it's clear you have a problem in your mind about the actions. Most would probably disappear with the acceptance of the accounting, but would not really be actionable anyway. A few would be actionable, but have little in damages. The tax issue and the failure to file an insurance claim on $100K (if insurance did cover it) seem a breach of duty which could result in substantial damages. The insurance claim on house items stolen of $100K would be limited by how much the insurance were to cover and could possibly be closed when the conservator/trustee is released.

See an attorney as you have way more suppositions then facts. Anger is not going to convince anyone.

 

[alicewonderland]

Thanks. I am trying to understand all of this myself so I can give an attorney what is needed and not just dump everything from a to z on them and waste time and money...so I know what the issue is and who to best handle it.

I do disagree with the recovery of stolen money not being the conservator's responsibility..once the conservator takes over, all poa are set aside and no one but the conservator can take action on behalf of the conservatee. had there not been a conservatorship, we could have taken action to recover the stolen money and property. We reported to the police. they filed a report and that was it...one officer said, "oh it is just about money? no one was physically abused?" The comnservator should have followed up on behalf of my dad to press charges, recover assets, etc.

CALIFORNIA RULE 7.1059 (b) 13
STANDARDS OF CONDUCT FOR THE CONSERVATOR OF THE ESTATE

“THE CONSERVATOR OF THE ESTATE MUST PURSUE CLAIMS AGAINST OTHERS ON BEHALF OF THE ESTATE WHEN IT WOULD BE IN THE BEST INTEREST OF THE CONSERVATEE OR THE ESTATE TO DO SO”

 

[tranquility]

Not unless you had knowledge and not a suspicion. Until then, it is not a "claim". Pressing charges would not be a part of the duty as the state does that. Are you sure the conservator did not ask an attorney for an opinion on if the money/property was recoverable? What are the facts?