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Guardian Of Estate Does Not Have Power To Revoke Trust

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MAY 21, 2001 VOLUME 8, NUMBER 47

Ruth Chandler was 73 when she established her revocable trust in 1997. The New Jersey woman had no family, and so she named Summit Bank as trustee. She transferred about $1.7 million into the name of the trust. Three months later she revoked that trust and established a new one, this time naming her friends Charles Menagh and Earl Tiffany as trustees.

Summit Bank expressed concern about the possibility that Ms. Chandler might no longer be capable of making such a change in her estate plan. The bank filed a court action to determine whether Ms. Chandler could change her trust. After two months of negotiations Ms. Chandler and the bank agreed that Charles Menagh and the bank would serve together as co-trustees.

A year later Ms. Chandler’s mental and physical health began to decline even more seriously. Summit Bank filed a report with New Jersey’s Adult Protective Services office. After investigation that office determined that Ms. Chandler should have a guardian of both the person and property (what in Arizona would be called a guardian and conservator).

At a hearing on appointment of a guardian the bank indicated that it would decline to serve as guardian of the person because “we have had some problems with guardianships of the person.” Although several other interested persons had sought appointment on Ms. Chandler’s behalf, the judged decided to appoint the New Jersey Public Guardian to handle Ms. Chandler’s personal and financial affairs.

The Public Guardian decided that it would not be in Ms. Chandler’s best interests to have a guardian of her estate (conservator) and a trustee both charging fees to administer her assets. Over the bank’s objections the guardian revoked the trust and directed that all Ms. Chandler’s assets be transferred to it for future management.

Although the bank requested a hearing on whether the Public Guardian had authority to revoke Ms. Chandler’s trust, the guardianship judge simply upheld the Public Guardian’s decision. Summit Bank appealed, even as it began to transfer Ms. Chandler’s assets, now totaling over $2.4 million. The bank retained $100,000 of the trust as a “termination fee.”

The New Jersey Superior Court Appellate Division agreed with Summit Bank. The least restrictive involvement in her life would be to accommodate her wishes, said the appeals court, and the way to accomplish that would have been to appoint the Public Guardian as guardian, but to limit the office to controlling her health care, placement, and assets outside the trust. The guardianship order permitting revocation of the trust was reversed, and the Public Guardian instructed to return Ms. Chandler’s assets to the bank’s control. In the Matter of Chandler, March 13, 2001.

If the guardian had been able to show the court that it was in Ms. Chandler’s best interests to revoke her trust the judge could have ordered such a revocation, said the appellate court. Simply giving the guardian blanket authority to revoke trusts was too broad and did not help ensure Ms. Chandler’s guardianship would be the least restrictive possible.

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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.