Case Summaries
Following are summaries of cases that illustrate the scope
of trust, guardianship, elder protection and litigation services frequently
performed by Alisa Gray and James Fassold.
These cases involve issues that include fiduciary defense, spousal rights in determining medical treatment, contested conservatorship,
serving as guardian ad litem, issues involving second marriages and adult
step-children, financial exploitation of elderly persons, family disputes,
trustee malfeasance, and trust administration.
Fiduciary Defense
After the defendant murdered the plaintiffs’
father, the plaintiffs filed a wrongful death suit (Koury v. Dobben). The
defendant was an eccentric desert dweller who did not have insurance but was
worth over $2 million in securities and real property. We represented the
defendant’s fiduciary in the wrongful death case and worked closely with the
civil defense attorney and criminal defense attorneys to bring a resolution to
this matter.
Legal Malpractice
In this third-party complaint (Causey v. AHCCCS),
we represented an agent for the Arizona Healthcare Cost Containment System (AHCCCS),
the State of Arizona’s Medicaid agency. AHCCCS brought a legal malpractice case
against an attorney it had retained to secure its creditor rights against
various decedents’ estates. The case was quite complicated because of the
triangulation of parties in interest. We were able to help negotiate a
settlement that provided our client with the ongoing business relationship with
the State while securing certain funds from the defendant law firm for
malpractice.
Spousal Rights in Medical Treatment
In a matter reminiscent of the Terry Schiavo case,
we represented the husband of a young woman who was rendered paraplegic, with
severe spasticity, as a result of a serious cardiac event. The cardiac event
occurred approximately two weeks after she gave birth to her first child. As is
common in these situations, the husband and the mother-in-law had various
disputes regarding her care plan. When the husband asserted his spousal rights
to direct the care, the mother-in-law brought a guardianship proceeding, arguing
that she should be appointed as guardian for her adult daughter because the
husband had barred the mother-in-law from the hospital room. The mother-in-law
had no medical evidence to support her allegations. We moved for and were
granted summary judgment, as the court found no evidence to support the
mother-in-law’s petition. The mother-in-law appealed, and the Court of Appeals
affirmed the trial court’s decision.
Note: This matter was handled largely on a pro bono basis.
Contested Conservatorship
Our client was appointed as Successor Conservator
to investigate why the inheritance of three orphaned minor children had been
left in a non-interest-bearing account with the Clerk of the Court for over
seven years. We determined that the attorney for the former conservator was
completely unfamiliar with probate court procedures, including accountings. For
almost seven years, he tried but failed to produce an accounting. In the
meantime, the minors were in serious need of additional funds. On behalf of our
Successor Conservator client, we brought a surcharge action against the former
conservator and a legal malpractice action against the attorney. Because the
amount in question was relatively modest (the lost interest on approximately
$250,000 worth of assets), we were careful to utilize only as much in expenses
as was absolutely necessary. We were able to reach an out-of-court settlement
that was beneficial to the children’s estates.
Guardian ad litem
Alisa Gray was appointed as guardian ad
litem for a potentially vulnerable or incapacitated man who had been abused
by his wife, who had married him in an attempt to manipulate the corporate
trustee. We assisted in removing her client from his home, which had become a
“flop house” for known drug users. We found suitable housing for him and his
dogs and arranged for assistance with his financial and medical affairs. He now
lives a mostly independent life style, with assistance as needed from his
fiduciary and his court-appointed attorney.
Adult Step-Children
We represented the surviving spouse of a man who
died leaving nine children from a previous marriage. The surviving spouse and
the decedent had numerous business affairs together but were in the process of a
divorce when he passed away. We helped the surviving spouse negotiate a
settlement with her step-children to reduce her exposure for the various
business affairs and to provide some closure to her on a very difficult chapter
of her life.
Financial Exploitation
Our client was an elderly lady who suffered from
dementia. Despite her significant assets, she insisted on living alone in a
small rundown house in central Phoenix. A young man befriended her and took
control of her finances. Representing the family, we had him removed as a signer
from all of her accounts and barred him from contacting her. We arranged for her
move to a more suitable residence, facilitated the sale of her property and
secured all of her assets in safe investments. She lived the rest of her life in
safety and comfort, and our actions in cleaning up her estate plan prevented any
post-death complications or disputes.
Family Dispute
Representing a private fiduciary company, we were
asked to intercede in a dispute between a son and the brother of an elderly man
who suffered from dementia. We resolved the dispute without protracted
litigation and managed his assets for the rest of his life. Although the
distrust among family members was high, the intervention of a neutral third
party helped to reduce the tension and prevented his assets from being exhausted
in court battles.
Trustee Malfeasance
After her mother died, our client was stunned to
learn that our client’s brother, acting as co-trustee of their parents’ trust,
had withdrawn so much money from the trust’s accounts that there was not enough
money to make distributions to charities as required by the trust. When
negotiations proved fruitless, our client was forced to litigate. We obtained
several favorable preliminary rulings that encouraged the parties to finalize a
settlement that fulfilled the parents’ wishes.
Trust Administration
A national trust bank engaged us to help administer two trust estates, against a
backdrop of considerable family acrimony. Although the beneficiaries initially
distrusted us as much as they distrusted the bank and each other, we were able
to administer and close both estates without resorting to litigation.
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