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Appointment of Conservator May Not Prevent Exploitation

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JUNE 1, 1998 VOLUME 5, NUMBER 48

Financial exploitation of the elderly has been a growing problem across the country in the past several decades. In many cases, the only way to protect vulnerable adults from continuing thefts and abuses has been to seek court intervention, usually in the form of conservatorship (or, as it is still called in some states, guardianship of the estate). Now a new and even more troubling trend is being observed: financial exploitation of vulnerable seniors by their court-appointed conservators.

In Tucson last year, insiders in the elder care community were shocked by the revelation that local paralegal Marilyn Summers had systematically looted hundreds of thousands of dollars from conservatorship and probate estates. In many cases, Summers had been appointed as conservator for an incapacitated adult, or as personal representative of the estate of a deceased person. In other cases, she took over administration of estates for family members, or for lawyers who had been appointed. Summers was well-known in Tucson legal circles, and had done free-lance paralegal work for dozens of lawyers over a twenty-year period.

Tucsonans should not have been surprised. Financial exploitation by court-appointed fiduciaries has become disturbingly commonplace in recent years. In fact, several of the more notorious incidents had occurred in Arizona, ranging from the 1992 indictment (and 1997 conviction) of a leading probate attorney in the Phoenix area to the 1997 conviction of the Mohave County Public Fiduciary. In both of those cases, the convicted fiduciaries had enjoyed favorable reputations in their communities, even as they were bilking the estates of incapacitated adults and decedents.

Other states have seen similar cases. Just last year, Denver lawyer Michael Dice was indicted after a three-year investigation by the Colorado State Bar into allegations that he had stolen money from ward’s accounts. In January, he was sentenced to an eight-year prison term. Until his indictment, however, he enjoyed a reputation as a distinguished probate practitioner, and regularly served as conservator of the estates of disabled adults.

A professional fiduciary in Michigan is presently under scrutiny by the U.S. Attorney’s office in that state. Guardian Inc., of Detroit, was accused of taking over $600,000 from wards’ estates. The organization apparently claimed that the payments were fees it had earned, but they were not disclosed in the annual accounts filed with the court.

Until recently, most lawyers assumed that court-appointed conservators would not be able to steal from their wards, at least not on a wide scale. Conservators are required to file annual accountings, and the court has the power to follow up as may be appropriate. What a naive (and understaffed) court system failed to anticipate, however, was the possibility that a larcenous fiduciary might simply fabricate an accounting, or omit important details of transactions.

Since courts seldom have the staff necessary to conduct audits on fiduciary accounts, such thievery can go undetected. In fact, even audits might fail to disclose the theft; Tucsonan Summers routinely transferred funds into accounts just before filing annual reports, then transferred the money back into other accounts–her actions were apparently aimed at making sure there would be sufficient funds on deposit as of the date of her accounting in case there was a later audit of the books.

The vast majority of private fiduciaries, of course, are honest. And in most cases they must post a bond to guarantee proper performance of their duties. Still, theft by fiduciaries is a growing problem, and new court procedures and statutes, while helpful, will not replace the vigilance of family members and advocates.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.