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Employer Pays Twice After Guardian Mishandles Funds

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When Ashley Tatum’s father Ernest died Ashley was still a minor. Ernest Tatum had named Ashley as beneficiary on several retirement and life insurance accounts with his employer, BellSouth, and so Ashley’s mother Rosalyn Felder had to go to court to secure an appointment as guardian of Ashley’s estate in order to handle the proceeds.

Ms. Felder hired Memphis, Tennessee attorney Philip Cooper as her attorney for the guardianship proceeding. Mr. Cooper presented the pleadings and evidence to the court, and Ms. Felder was appointed as guardian of Ashley’s estate (in Arizona and a number of other states, incidentally, Ms. Felder would have been named as “conservator” rather than “guardian”—but the roles would be the same).

The court was concerned, however, about protecting Ashley’s estate from poor management or misappropriation. In order to ensure that nothing would go awry, the court imposed two requirements on Ms. Felder. She was ordered to post a surety bond and the accounts were to be under the “joint control” of Ms. Felder and her attorney, Mr. Cooper.

A surety bond is essentially an insurance policy protecting the estate in a guardianship or conservatorship proceeding, and Ms. Felder purchased her bond through Fidelity & Deposit Company of Maryland (F&D). The joint control requirement was to be satisfied by attorney Cooper taking responsibility for collecting and overseeing Ashley’s money.

Mr. Cooper wrote to BellSouth to tell them of the conservatorship appointment. His letter enclosed a copy of the court pleadings and instructions that all monies were to be sent to his office address. Then he set up a guardianship account for Ashley and began depositing the life insurance and retirement proceeds into it.

Despite the instruction, however, BellSouth sent one of the checks directly to Ms. Felder, made payable to “Ashley J. Tatum, Rosalyn W. Felder Guardian of”. That check was in the amount of $18,622.38, and it never made it into the guardianship account. Presumably, Ms. Felder cashed the check and spent it, without ever notifying her attorney she had received it.

Five years later Ms. Felder was removed as guardian of Ashley’s estate and Fidelity & Deposit (the insurance company) paid off on its bond. Then the bonding company went after BellSouth for its failure to follow the lawyer’s initial instructions. The probate court (which handles guardianships of minors’ estates) ordered BellSouth to pay F&D the amount it had sent directly to Ms. Felder, plus interest, and BellSouth appealed.

The Tennessee Court of Appeals upheld the probate court’s judgment against BellSouth. The company knew about the joint control requirement, said the court, and if the company had followed instructions no loss would have occurred. BellSouth was ordered to pay the original amount, plus interest, and also costs of the appeal. Guardianship of Tatum, February 4, 2002.

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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.