Friday, August 30, 2013
Missouri Circuit Court Judge Karl A.W. DeMarce offers thoughtful comments from the bench on potential conflicts of interest for family members, especially spouses, in handling responsibilities as court-appointed conservators or guardians. Judge DeMarce stresses the lawyer's role in advising conservators on appropriate financial transactions, including transfers of assets:
"No conservator-spouse should have to face unnecessary legal complications and burdens – in addition to the family tragedy of having to care for a loved one no longer capable of managing his own affairs – because her attorney failed to advise her of the legal obligations and potential conflicts of interest involved. No attorney wants to learn that a client’s world has been unnecessarily turned upside down because of his or her failure to provide timely and complete legal advice. In the potential legal minefield of spousal conservatorship, the value of frank, timely, and comprehensive legal advice cannot be overestimated."
Further, the judge points to the lawyer's role in explaining the validity of transactions to the court:
"Counsel can play a valuable role not only in advising the conservator-spouse, but also in explaining to the probate division why certain types of expenses beneficial to the conservator-spouse, which would ordinarily be seen as being in violation of fiduciary duties, may be in the protectee’s best interests due to MO HealthNet program requirements."
Read the full article, "The World Turned Upside Down: Challenges Facing the Conservator-Spouse," published in the August 2013 issue of the Journal of the Missouri Bar.