Friday, August 29, 2008

Controversial Deathbed Will

The Texas Supreme Court declined to hear an appeal in the long-running battle for ownership of an aging Swiss Avenue mansion, once the crumbling centerpiece of former model Mary Ellen Bendtsen.

4949 Swiss Ave. remains the focal point of ongoing legal battles – including state felony charges of attempted theft against three men.

Mrs. Bendtsen's daughter and her attorneys said they hope the Supreme Court's refusal will be the impetus for closure in a sweeping saga that began long before Mrs. Bendtsen signed a controversial deathbed will.

The court's refusal effectively upholds previous court decisions that declared Mrs. Bendtsen's daughter the rightful heir and rejected a bid to block the home's sale. A Dallas probate court previously rejected a will that left Mrs. Bendtsen's stake in the house to Deep Ellum antique dealers Mark McCay and Justin Burgess, whom she befriended late in life.

Frances Ann Giron, Mrs. Bendtsen's daughter, called the legal drama that has ensued since her mother's 2005 death "unmitigated hell."

"I haven't had an opportunity to grieve my mother in three years."

Full Article and Source:
Texas Supreme Court won't hear appeal in case of Swiss Avenue mansion

See Also:
Mary Ellen's Will - The Battle For 4949 Swiss by Lee Hancock

Thursday, August 28, 2008

Probate Judge Cannot Hear Case

Questions concerning money that the Jasper County public administrator spent out of the estate of Emma France can’t be decided by Probate Judge David Mouton because he already has issued a ruling that reversed orders making France a ward of the county.

France and her attorney, R. Lynn Myers, appeared in probate court to argue that Rita Hunter, the public administrator, had no right to spend any money from France’s estate because actions that made her a county ward were unlawful.

In a brief hearing, Mouton noted that he had set aside orders making France a ward of Hunter’s office because, among other issues, France’s daughter or other relatives were not named in the court petition or notified before the hearing in May 2007.

Since Mouton ruled in France’s favor setting aside the guardianship, there is no longer an estate on which he can hear arguments.

Mouton said,“Letters (of guardianship) should not have been issued, based on facts that were not provided at the prior hearing.”

Mouton had dismissed the action, observing that the court can appoint a guardian only “in accordance with the procedures set forth in the statutes, and if there has not been compliance with the statutes, the entire proceeding is void.”

Full Article and Source:
Money questions remain for former county ward

See also:

Tuesday, August 26, 2008

Court Oversight of Guardians

The Time Is Now: Guardians Should Be Licensed and Regulated Under the Executive Branch, Not the Courts
by Margaret K. Dore

With increasing numbers of Americans living longer, many are finding themselves under guardianship. The guardian appointed may be a family member or friend, or a “professional” guardian or guardianship company.

In many cases, the guardian is honest and hardworking for his ward. In other cases, the guardian abuses or exploits the ward.

"The premise of this article is that this well-meaning effort to increase guardianship accountability is misplaced. Although courts have traditionally been responsible for guardianship oversight, they are ill-suited for this function. Guardians should be licensed and regulated under the executive branch, not supervised by the courts."

The Courts Respond:
The issue of guardianship abuse has also caught the attention of the courts. The Washington State Supreme Court now oversees the “Certified Professional Guardian Program.” Under this program, there are two entities that directly supervise professional guardians: the Certified Professional Guardian Board, which reports to the Supreme Court, and the superior court in each county.

The Board’s Role:
The Certified Professional Guardian Board “adopts and implements regulations governing certification, minimum standards of practice, training, and discipline of professional guardians.” The Board does not, however, interfere with the traditional role of the superior court. The superior court continues to be the “main venue” for making a complaint against a guardian.

A Contrast to Other Activities:
The “job” of a guardian is to manage the affairs of an incapacitated person. Other entities with similar jobs are not “supervised” by courts. An example would be a nursing home. Nursing homes manage the affairs of persons not able to care for themselves. Nursing homes are regulated by the Department of Social and Health Services.12 The Department of Social and Health Services is under the executive branch.

Problems with Court Supervision:
Little or no relevant training. A major problem with court supervision of guardians is that the typical judge or commissioner has little relevant training.

How Licensing and Regulation Might Work:
In other states, there are emerging programs in which oversight is provided via the executive branch. For example, California recently enacted SB 1550, which establishes the Professional Fiduciaries Bureau within the Department of Consumer Affairs

Without effective oversight, abuse of wards by their guardians will only continue. It is time to consider a different paradigm. Guardians should be licensed and regulated under the executive branch, not the courts. Other methods of third-party oversight should be investigated and explored.

Full Article and Source:
The Time Is Now: Guardians Should Be Licensed and Regulated Under the Executive Branch, Not the Courts

Margaret Dore, J.D., M.B.A., is a fourth generation attorney and Seattle native. She has been licensed to practice since 1986. She was one of nine nominees for the 2005 Butch Blum/Law & Politics Award of Excellence. Ms. Dore's successful cases include In re Guardianship of Stamm, 121 Wn. App. 830, 91P.3d 126 (2004), which limits the admissibility of guardian ad litem testimony. She also prevailed in the nationally recognized case, Lawrence v. Lawrence, 105 Wn. App. 683, 20 P.3d 972 (2001). For commentary on Lawrence, see Wendy N. Davis, Family Values in Flux, ABA Journal, Vol. 87, p. 26, October 2001. Law Offices of Margaret K. Dore