Local attorney disbarred over botched family trust

By Ben Irwin

Attorney Robert Fletcher disbarred by State Bar, Superior Court of California after nephew attempts to collect rightful trust shares, finds nothing left

TULARE – The old saying goes family and business don’t mix, and the Fletchers have learned that the hard way.

Local attorney Robert Fletcher was disbarred in November by the State Bar of California for cutting his nephew Russell out of the family trust. Fletcher sold assets tied to Russell’s share and more for just shy of a million dollars, from which Fletcher personally benefited.

Fletcher was disbarred for breach of fiduciary duty to trust beneficiaries while serving as a trustee, misappropriation of trust funds and dishonest and corrupt acts as a trustee while managing the Thelma F. Fletcher Family Revocable Trust of 1989.

Marion and Thelma Fletcher established their family trust in 1989, which provided that when both had died, the trust assets would be divided in thirds to each of their three children, Marion D. Fletcher Jr., Robert Fletcher and Mary Anne Record.

When Marion D. Fletcher Jr. died prior to the deaths of his parents, the trust was amended in 1996 for Marion D. Fletcher Jr.’s share to be given to his son, Russell Fletcher, on his 35th birthday, April 8, 2018.

Fletcher became the sole trustee of the Fletcher trust in 2002 after the deaths of his parents, when the trust assets totaled about $1.1 million: about $56,000 in cash, a $900,000 apartment building in Fresno County, a $137,000 house in Tulare County and $7,500 in possessions.

In 2003, Fletcher sold the Fresno County apartment building, netting about $910,000 on the sale. According to the State Bar, Fletcher’s sister Record remembered receiving about $330,000 after the sale of the apartment building, what she believed to be one-third of the trust.

In 2018, Russell sought his share of the family trust after his 35th birthday, only to find that virtually no funds remained. Russell then petitioned the Tulare County Superior Court, where Fletcher could not account for the missing funds. According to the State Bar, bank, tax and trust records show that large amounts of funds were misappropriated over the years.

The Supreme Court of California ordered Fletcher to pay $303,494 plus 10% interest per year from 2003 on in restitution to his nephew Russell, and $10,778 plus 10% interest per year from 2015 to his nephew and sister.

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Local attorney disbarred over botched family trust

A Family History of the Smiths & Alexanders

By: Tiffany Bentley & Ann Hetherwick Cahill

Welcome to the story of the Smiths and the Alexanders — made-up people with a wild accumulation of fictional (but factual) circumstances that raise all kinds of probate and fiduciary litigation issues. What potential problems do you spot here? What are the arguments to be made on all of these contentious issues? Stay tuned to Beyond the Will throughout November and December as we dig deep into this family’s saga.

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Johnny Smith and Jocelyn Smith were married in 1983 in Massachusetts. They had two children, Randall Smith (born January 1, 1985) and Twyla Smith (born March 3, 1987). Unfortunately, Jocelyn died in a tragic car accident in 1995 with no estate plan in place.

At the time of her death, Jocelyn had a gross estate of approximately $5,000,000 consisting primarily of individually held investments that she had inherited from her parents. She also had a few minor accounts held jointly with Johnny but no retirement accounts or life insurance policies.

Johnny began dating Moira Alexander in 2000. Moira had two children of her own, Alexis Alexander (born February 5, 1985) and David Alexander (born October 8, 1989).

In 2005, Moira, Alexis, and David moved into the Smith home with Johnny, Randall, and Twyla. They appeared to have minimal issues as far as blended families go. Their children got along and each accepted the other adult as a parental figure. As the children graduated and moved out of the family home, they remained in frequent contact with both Moira and Johnny and returned home for holiday and birthday celebrations.

Moira and Johnny met with an estate planning attorney, Attorney Mullens, in March of 2013 in order to have estate planning documents prepared including wills, revocable trusts, health care proxies, durable powers of attorney, and HIPPA waivers. Moira and Johnny were planning on eloping the following month and thus told Attorney Mullens that they were already married.

Attorney Mullens prepared estate planning documents for each of Johnny and Moira. Each will stated that the testator was married and left tangible items to the surviving spouse and otherwise to the surviving children in equal shares. Children under both wills were defined to include Randall, Twyla, Alexis, and David. The residue under Johnny’s will poured over to The Johnny Smith Trust. The residue under Moira’s will poured over to The Moira Alexander Trust. Moira was named as Personal Representative under Johnny’s will followed by Randall as a successor. Johnny was named as Personal Representative under Moira’s will with Alexis named as successor. Through Johnny’s will, he exercised a limited power of appointment that had been granted to him in a Family Trust established by his parents, directing that income from that trust be paid to his spouse, Moira, for her lifetime. That trust, by its terms, would terminate upon the last to die of Johnny and his four siblings, at which time the remaining principal would distribute outright to the issue of Johnny and his siblings by right of representation.

Johnny was the Donor and Trustee of The Johnny Smith Trust. Johnny was the beneficiary of The Johnny Smith Trust during his lifetime. After his passing, the Trust was structured to minimize potential Massachusetts and Federal estate tax while providing for Moira’s sole benefit during her lifetime. After Moira’s death, any remaining assets would divide into equal shares and would be distributed outright to each of Randall, Twyla, Alexis, and David. Moira and Attorney Mullens would serve as successor Trustees after Johnny’s death. After Moira’s death Attorney Mullens (or another attorney from his firm) would serve as sole Trustee.

The provisions of The Moira Alexander Trust mirrored those of Johnny’s Trust. Moira was the Donor and Trustee of her Trust and the beneficiary during her lifetime. After her passing, the Trust would minimize potential estate taxes while providing for Johnny during his lifetime (if Johnny survived) and otherwise the assets would be divided into equal shares and distributed outright to all four of the children. If Johnny survived, he would serve as a Trustee along with Attorney Mullens (or another attorney from the law firm).

Finally, Moira was named as agent under Johnny’s health care proxy and durable power of attorney, followed by Randall. Johnny was named as agent under Moira’s health care proxy and durable power of attorney, followed by Alexis.

Moira and Johnny signed their wills and trusts in early April of 2013. Although Attorney Mullens encouraged them to sign all of their documents, Johnny and Moira neglected to sign their health care proxies and durable powers of attorney. They wanted to give more consideration as to whether they wanted a child to serve as a co-attorney-in-fact with the other spouse under the durable powers of attorney, and whether they wanted language concerning the life-sustaining treatment in their health care proxies.

Moira and Johnny postponed their plans to elope after Moira, a doctor, had worked long hours caring for victims of the Boston Marathon bombing.

Unfortunately, Johnny began exhibiting signs of early-onset Alzheimer’s in late 2017. His health deteriorated rapidly and by mid-2018 Johnny was unable to function independently. Moira cared for Johnny to the extent possible at their home and hired an in-home nurse to assist as necessary.

That holiday season, Randall gave Twyla one of the newly-released ancestry testing kits hoping that it might shed some light on their father’s disease and their potential risks down the road. Twyla took and submitted the ancestry test, set up an online profile and ultimately forgot about it with everything else that was going on in her life.

In February of 2019, Twyla decided to surprise Moira and Johnny and made an unplanned visit to her childhood home while in town for a bridal shower. Twyla became concerned when she saw a brand new Mercedes SUV sitting in the driveway. Twyla inquired and Moira explained that it was a “gift” and not to ask so many questions. Twyla mentioned this to Randall who at the time was roommates with David. He noted that David, an avid baker, had recently come home with a brand new collection of Le Creuset cookware. Randall hadn’t given this much thought but after his conversation with Twyla wondered how David, a struggling artist, could afford to spend that much money on items that simply supported a hobby.

Randall and Twyla became more concerned with how they believed Moira was spending Johnny’s money. After Moira avoided their questions multiple times, Randall and Twyla sought the advice of their own attorney, Attorney Budd. Attorney Budd advised that they could petition the court to have an independent conservator appointed to handle Johnny’s finances. After filing a petition, and over Moira’s objection, the court-appointed an independent conservator and independent guardian for Johnny.

The relationship Randall and Twyla had with Moira and her children continued to deteriorate as their father’s health grew worse. After one particularly difficult evening in February of 2020, Johnny had to be rushed to the emergency room after he was completely unresponsive and had labored breathing. The doctors advised that he likely had only a few hours to live unless he was placed on life support. Moira believed that Johnny did not want life-sustaining treatment and advised the doctors to give him medicine to simply make him comfortable. When Randall arrived he demanded that the doctors put his father on life-support. Unfortunately, before any decision could be made, Johnny passed away.

Johnny died with a gross estate of $7,000,000 consisting of his Massachusetts residence and a variety of investment and bank accounts titled in his name, individually, a bank account with approximately $75,000 held jointly with Moira, a life insurance policy payable to his Trust with a death benefit of $500,000 and a 401k account in which Moira was named the primary beneficiary followed by the four children equally as contingent beneficiaries.

Moira turned to Attorney Mullens to probate Johnny’s estate and prepare any necessary tax filings. Attorney Mullens was shocked to discover that despite what he had been told and what was provided in their wills, Moira and Johnny had never actually married. Attorney Mullens filed a Petition in Probate Court to have Moira appointed Personal Representative of Johnny’s Estate. Both Randall and Twyla filed objections. In addition, Randall and Twyla engaged Attorney Budd to present an argument that all provisions for Moira under the will and trust should be disregarded given the fact that she was not actually their father’s spouse, that their father’s tangible items should be distributed in equal shares to them, and that the remainder of their father’s estate should pass outright to the two of them (to the exclusion of Alexis and David).

This argument enraged Moira and she engaged a new estate planning attorney, Attorney Brewer, to prepare a new estate plan with the intent to disinherit Randall and Twyla. Moira’s new will provided for tangible items to be divided equally between her children, Alexis and David. Moira amended and restated The Moira Alexander Trust and provided that after her death, all assets would be divided into equal shares and distributed outright to Alexis and David.

Meanwhile, Attorney Mullens was working to prepare the Massachusetts Estate Tax Return for Johnny’s Estate. He wished to utilize the tax planning methods that had been provided for through Johnny’s will and trust and take advantage of the spousal deduction that could be taken on any assets that passed to Moira as the surviving spouse either outright or as held under Johnny’s trust for her benefit during her lifetime.

Around the same time, Stevie Jenkins, a young woman living in Colorado, contacted Twyla after her own ancestry test results indicated that she and Twyla could be half-sisters, sharing Johnny’s genetic profile. Twyla, although shocked at the discovery, was interested in getting to know Stevie but was concerned about whether Stevie might have any rights to Johnny’s assets under his own estate plan or under the Family Trust that Johnny’s parents had established.

Full Article & Source:

A Family History of the Smiths & Alexanders 

Financial Exploitation and the Authority of a Conservator

Ann Hetherwick Cahill

To best enjoy this post, please be sure to first read A Family History of the Smiths & Alexanders.

In this last discussion of the Smith and Alexander families, we examine financial exploitation, its impact on suitability in appointing a conservator, and steps that a conservator can take if there is evidence of prior financial exploitation. As background, Johnny developed Alzheimer’s, and Moira cared for Johnny at their home, with the help of an in-home nurse. When Randall and Twyla were concerned with how Moira was spending their father’s money, they appropriately filed for a conservatorship. Randall and Twyla asked for an independent conservator to be appointed over Johnny, to which the court agreed, despite Moira’s objection.

Moira likely objected because she wanted to be appointed as conservator over Johnny. Remember that Johnny and Moira never signed the health care proxies and durable power of attorneys prepared by Attorney Mullens (they did sign their Wills and Trust). Johnny’s health care proxy and durable power of attorney named Moira as the agent, followed by Randall. Had Johnny signed his durable power of attorney, Moira would have had top priority for consideration for the appointment as conservator under the governing statute. Otherwise, she lacks any priority for the appointment. Moira might still argue that the unsigned durable power of attorney evidences Johnny’s intent for her to serve as conservator. That would be a tough argument, though, given that Johnny never actually signed the durable power of attorney, and he was still thinking about whether he wanted to name one of his children to serve as co-attorney-in-fact with Moira.

Importantly, the court would likely not appoint Moira as conservator for Johnny because she is unsuitable to serve in such a fiduciary position. Based on the facts, it seems like the conservator need arose out of Moira’s lavish spending of Johnny’s money. The governing statute ensures that lack of qualification or lack of good cause overrides any person’s priority for the appointment. Here, with Moira’s history of using Johnny’s assets, there is a solid argument that she should not be appointed.

With a neutral conservator in place, the conservator is protecting Johnny from future exploitation and standing in Johnny’s shoes to pursue any necessary investigation and/or claim against Moira or any other wrongdoer. A conservator is explicitly empowered to “commence, prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets,” pursuant to M.G.L. c. 190B, § 5-423(c)(26). Once appointed, the conservator likely learned from Randall and Twyla of their concerns about Moira’s spending. Then the conservator has the power to review bank account statements, hire counsel, and file any claim to recover any assets if necessary. As shown by Moira, often, the fight over a person or estate stems from wanting to remain in control and to limit someone’s own potential liability for bad acts.

If you have concerns about the financial exploitation of a loved one, you should consult with a skilled attorney who specializes in this area of the law.

Until next time!
Hether

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Financial Exploitation and the Authority of a Conservator

The best legal planning may not be enough to keep you safe from guardianship

BRADENTON, Fla. — Even the best retirement plans may not be enough to keep a stranger from taking over your life under the state’s troubled guardianship system, the I-Team found.

Alice Yaniscavitch said she thought she was making all the right moves in retirement when she went to a lawyer to set up a family trust – a decision she says ended up costing her control over her own life.

The 85-year-old moved in with her daughter Terri McGuire and her son-in-law Mickey in Manatee County after last year selling her home in Cleveland, Tennessee.

“Terri was taking care of me. She’s very good,” Yaniscavitch told I-Team Investigator Adam Walser last month.

At the time, Yaniscavitch was waiting to see if a judge would permanently place her in court-ordered guardianship, which she said she didn’t want.

“It’s my life – not theirs,” said Yaniscavitch.

Yaniscavitch said the thing she feared most was “going to a nursing home.”

“They’re not going to put me in one,” she said.

McGuire and the advocacy groups that she reached out to were concerned when the case first started in late November.

They contacted the Florida Office of Public and Professional Guardians, a watchdog agency set up three years ago to police the state’s broken guardianship system.

So far, the agency hasn’t taken any action in Yaniscavitch’s case.

How did the guardianship start?

Yaniscavitch gave both her daughters – Terri McGuire and Lori Yaniscavitch – powers of attorney over her health care decisions as part of her retirement planning, according to court records.

In November 2017, Yaniscavitch set up an irrevocable family trust, with 90 percent of her money benefitting McGuire, who was taking care of her and the rest going to Lori, according to the trust document obtained by the I-Team.

Tennessee attorney Jeff Miller wrote, witnessed and notarized the trust agreement.

“She knew why she was there. She had a purpose for being there,” said Miller.

Miller said Yaniscavitch wanted to move her assets into a trust to make sure she would be eligible for a future government benefit.

Miller said she also wanted her daughters to avoid going to probate court to settle her estate after her death.

But when Lori Yaniscavitch found out about the trust, she went to court in November, seeking guardianship for her mother.

Lori Yaniscavitch wouldn’t speak to the I-Team at a recent court hearing, but in court documents she alleges her sister was financially exploiting their mother and endangering her health.

When I-Team Investigator Adam Walser asked Alice Yaniscavitch if she felt safe in her daughter Terri’s home, she replied, “Oh, yeah. Definitely.”

Daughter moves to break up trust

Lori’s attorneys asked a judge to remove her mother from Terri’s home and put her in memory care and argued her mother didn’t know what she was doing when she signed the trust document in 2017, court transcripts and documents from the case show.

But Stetson Law Professor Roberta Flowers, director of the Stetson Elder Law Center, said that may be difficult to prove.

“The issue revolves around, under the law, was the person capable at the moment they signed the document,” said Flowers.

“You have to have people who are there when they signed the document who are able to articulate what was going on with that person, how was that person acting so that a judge at some future date can say ‘Oh yeah. Ok. It sounds like that person understood,’” said Flowers.

Miller said he put those safeguards in place when Alice Yaniscavitch signed her trust documents.

“She was fully engaged, fully aware of what she wanted to do,” Miller told the I-Team. “She was the one who spoke out and told me what she wanted and why she wanted it.”

Judge freezes all accounts

But Judge Deno Economou froze Yaniscavitch’s trust account, along with Terri and Mickey McGuire’s bank accounts.

Their funds were frozen before Christmas, according to the court order, but the McGuires hope the Florida Court of Appeals will overturn the judge’s order.

“The allegation is that they have improper funds in that account. Unfortunately, there’s no evidence to support that,” said attorney Marc Soss, who represents the McGuires. “It’s someone trying to second guess the estate planning that Alice put into place because they don’t like it.”

Judge Economou also appointed Anne Ridings as Yaniscavitch’s guardian.

Within a few days of being appointed guardian, Ridings took all of Yaniscavitch’s jewelry for safekeeping.

Terri McGuire showed ABC Action News photos she took of hundreds of pieces of her mother’s jewelry before they were taken.

“Gold watches… I’ve got bracelets, a lot of earrings, diamond earrings,” said Yaniscavitch about the jewelry she had taken from her.

Wedding ring taken off her finger

Yaniscavitch said Ridings even took the wedding ring off her finger, which she has worn for 58 years – even after her husband died.

“Horrible, horrible,” said Yaniscavitch when asked about losing the ring she wore for 58 years –even after her husband died.

“It’s called marshaling the assets,” said Jeff Swartz, a former judge and law professor. “I can understand that the guardian wants to marshal and inventory assets – that’s fine – but taking her wedding band off her finger and not letting her have it back or taking her jewelry and just sticking it away – when maybe she does still wear it because at certain lucid moments she wants her things around her – that’s just not necessary.”

Less than two weeks after the I-Team interviewed Yaniscavitch, her daughter Lori picked her up, saying she was taking her to a hair appointment.

Instead, she moved her into assisted living – even though court transcripts show the judge said earlier that Yaniscavitch should remain in her daughter Terri’s home.

Injured in assisted living

Days later Terri shot a video of her mother at the memory care center, which she shared with the I-Team. In the video, Yaniscavitch complained of arm pain and said she had fallen.

Terri McGuire had her friend, who at the memory care center with her, call 911 for an ambulance to take her mother to a hospital, where doctors diagnosed Yaniscavitch with a fractured vertebra.

Days after Yaniscavitch went to the hospital, guardian Anne Ridings filed an emergency motion asking the judge to limit McGuire’s visits, court records show. The judge denied that request.
Ridings did not respond to the I-Team’s interview requests.

It’s unclear whether Yaniscavitch’s wishes will ultimately be carried out. She has not been in the courtroom to talk to the judge during five hearings so far.

Before she was removed from her home, I-Team Investigator Adam Walser asked Yaniscavitch what would happen if a judge told her she had go to a nursing home.

“I'm not, I'm not,” said Yaniscavitch. “I’d say you’re going to have to put me in jail. There’s no way they’re putting me in a nursing home. I’ve been through it. I’ve seen it. I don't want to be there.”

The judge still hasn’t ruled yet on whether Yaniscavitch will be placed in permanent guardianship.

After Yaniscavitch was released from the hospital, she was taken to a rehabilitation center, where she is currently recovering from her injury.

If you have a story you think the I-Team should investigate, contact adam@abcactionnews.com.

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The best legal planning may not be enough to keep you safe from guardianship

Man sentenced for stealing from elderly mother

CONCORD, N.H. (AP) - A Hillsborough man has been sentenced to 7½ to 15 years in prison for stealing nearly $309,000 from his elderly mother.

The New Hampshire attorney general’s office said 54-year-old Jerry Newton was sentenced Thursday on three felony counts of financial exploitation of an elderly adult. He was accused of taking more than $227,000 from his mother’s retirement account, $81,300 from her checking account and $19,000 from a family trust.

Officials say Newton served as an agent under his mother’s power of attorney and trustee under a family trust and used the money for his own benefit.

He faces additional prison time if he fails to pay restitution.

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Man sentenced for stealing from elderly mother