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Fiduciary Duty Not Breached In Limited Conservatorship Case

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When the courts appoint a guardian or conservator to handle an individual’s personal and/or financial affairs, the subject of those proceedings loses virtually all of his or her autonomy and independence. At least that’s the way things have worked for centuries. In recent years, however, the guardianship system in this country has seen a small but detectable shift toward the use of “limited” guardianship and conservatorship.

Missouri law, for example, encourages a finding of “partial” incapacity rather than requiring a determination that a ward is completely incapacitated. To the extent that the ward is able to handle his or her own affairs, a finding of partial incapacity permits the court to limit the powers and responsibilities of the guardian or conservator.

That was the approach taken by the court with Elliott Scott Rogers, whose stepdaughter Donna Gardner sought appointment as guardian and conservator after Mr. Rogers had a stroke. By the time of the hearing Mr. Rogers had improved considerably. The court appointed Ms. Gardner as limited guardian and conservator, and spelled out some of the limitations on her powers. Ms. Gardner was to help transport Mr. Rogers to medical appointments, admit him to the hospital if necessary, and to assist in paying bills, writing checks and managing finances.

Over the next six months Mr. Rogers arranged for the purchase of an annuity naming Ms. Gardner as beneficiary, and hired a lawyer to prepare a new will leaving the bulk of his estate to Ms. Gardner. The checks paying for both of those items, as well as a number of personal bills of Ms. Gardner’s paid from Mr. Roger’s funds, were signed by Ms. Gardner, who was listed as a joint owner on Mr. Roger’s bank account.

When Mr. Rogers died his daughters objected to the payments for Ms. Gardner’s benefit, and the guardianship court ultimately ordered that all the money should be returned. The court also invalidated the will naming Ms. Gardner, on the theory that she had exceeded her authority when she paid the lawyer’s fee for preparation of the will.

The Missouri Court of Appeals disagreed. The whole purpose of limited guardianship and conservatorship, said the appellate court, is to encourage the ward’s autonomy and self-determination. The evidence was that Mr. Rogers understood what he was doing and wanted to benefit Ms. Gardner. It was not a breach of her fiduciary duty for her to help him achieve his goals, and she should not be ordered to return the funds. Even if Ms. Gardner’s actions had breached her fiduciary duty as conservator, said the appellate court, it would have been improper to invalidate Mr. Rogers’ will just because she wrote the check to pay for its preparation. Estate of Rogers, January 13, 2003.

The logic of the Missouri court is, frankly, a little unorthodox, but the result is unassailable. The purpose of a guardianship or conservatorship proceeding should be to protect the ward from exploitation or abuse, but to do so with the least invasive or limiting mechanism available. The court’s decision recognizes that Mr. Rogers’ level of functioning was high enough to permit him to make many of the decisions about his own finances, and the result validates those decisions.

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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.