Greer v. Professional Fiduciary, Inc., Wells Fargo Bank, N.A., et. al.

The Minnesota Court of Appeals released its opinion in Peggy Greer v. Professional Fiduciary, Inc., Wells Fargo Bank, N.A., et. al..  The Court held that a formerly incapacitated person’s claims against her former conservator and former guardian constitute an improper collateral attack on the probate court’s final orders when the claims challenge actions taken during the course of the conservatorship and guardianship that addressed in those final orders.

Lessons to be learned from Greer:

  • If you are a guardian or conservator, make sure that your annual accounts set forth every asset and expense specifically, so that when the Court issues it’s order approving the accounts, each asset and expense is encompassed in its final order.
  • If you are an incapacitated person, and you question the actions of your guardian or conservator (whether it is an expenditure that has been made, an investment that has been made, or the keeping of you in a facility that you don’t think you belong, etc.), you need to act in a timely manner to address the issue with the probate court or an appellate court.  Wait to long to act, and you will be prohibited from doing so on the grounds that you are bringing an improper collateral attack on a final probate order.

As someone who represents guardians and conservators, I would say the Court of Appeals got it right.  To leave them subject to potential liability for their actions, years after the probate court issued an order approving the same would be unfair and would likely send many a guardian and conservator running to look for a different career with less liability associated with it (or for a higher errors and omissions policy).

However, as someone who also represents wards, I would say there is a fundamental fallacy in the Court’s opinion, which is that someone who is under a guardianship or conservatorship, often times does not have the capacity to even understand the documents that they are served with each year (the annual account, the personal well being report and annual notice, orders of the court regarding the same, etc.) and that they are expected to promptly bring any objections to or appeal.  The Court of Appeals pointed to a ward/protected person’s right to counsel, as if that is the saving grace of the incapacitated person.  The very practical problem is that the incapacitated person likely does not have the ability (mental or financial) to hire their own counsel to address any issues that may exist, and the courts do not routinely or automatically appoint counsel to represent incapacitated persons on annual accounts.  So what is the solution?  Perhaps the probate court needs to be extra vigilant in reviewing the submissions of guardians and conservators and, if anything looks at all questionable (and perhaps on high dollar cases automatically), appoint an attorney to represent the ward/protected person.  Perhaps family members of incapacitated persons need to be more assertive in finding separate representation for their loved one, if there is any question at all about the propriety of the submissions to the court. 

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