Recently, I have become involved in quite a lot of litigation involving the potential financial abuse and or breach of fiduciary duty by a successor fiduciary. This can take the form of a petition to appoint or remove a successor trustee, a petition for probate conservatorship of the person and/or estate.
It almost always plays out the same way . Usually, I am approached by the loved one of an elderly person. Usually the fiduciary who is alleged to have acted wrongly ( i.e. breached their fiduciary duties to the principal, is either a family member or a friend/ caretaker of the elderly person. In several current cases the fiduciary has been acting in secrecy. Either hiding important decisionmaking, etc. or blatantly refusing to turn over information. In some cases the alleged financial abuser is living in the principal's residence or some other real property they happen to own or beneficially own, rent free.
This is potentially a breach of the duty of loyalty, which requires that a fiduciary put the interests of their principal ahead of their own. There may be some circumstances in which it would be appropriate for a principal to live in someones house or apartment rent free and it wouldn't be a breach of fiduciary duty. However, only an attorney or really rather a probate judge can make that determination.
In many of these situations the accusers lack information so its mainly a case of hearsay and conjecture until facts are obtained either through formal discovery, factual investigations, or just as a result of being appointed conservator of the person and or estate. But all these cases share one thing in common; the accused financial abuser has not been acting transparently ( i.e. have not been letting all the other beneficiaries and family members know what is going on. Additionally, they should provide accountings when compelled and generally keep all those people informed. To hide things or not disclose all sorts of these things only leads to suspicion.
Occasionally, there are reasons to keep information like this from one or more particular family members or other interested parties. However, in the vast majority of cases if the fiduciary has done no wrong (i.e. not breached any fiduciary duties) they should have no reason not to keep everyone informed! So my advice to all fiduciaries is unless there is a good reason not to, make sure you keep all interseted persons informed of everything that you are doing on behalf of a principal and let them know your reasons for decisions.
ABOUT CHRISTOPHER R. TWINING
Christopher R. Twining, Attorney at Law, based in the Westwood Neighborhood of Los Angeles is an innovative estate planning, probate & trust administration, and elder law attorney, who offers in home services for busy and movement challenged clients. The Law Office of Christopher R. Twining serves the cities of Los Angeles, Santa Monica, Culver City, Beverly Hills, West Hollywood, Pasadena, Burbank and the neighborhoods of West Los Angeles, Westwood, Brentwood, Bel-Air, Pacific Palisades, Palms, Pico-Robertson and Encino. Dedicated to helping individuals and couples prepare comprehensive estate plans according to their wishes; he offers them these services at an affordable price, in the relaxed comfort of their homes. For more information about his services, please visit http://www.twininglaw.com or call (310) 492-5990.
CHRISTOPHER R. TWINING
LAW OFFICES OF CHRISTOPHER R. TWINING
1440 VETERAN AVENUE, SUITE 509
LOS ANGELES, CALIFORNIA 90024
(310) 492-5990 Fax (310) 775-9774
http://www.twininglaw.com
0 comments:
Post a Comment