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Massachusetts Probate Court Judge Orders 2 Lawyers to Pay $328,770.97 Back to Estate

April 30, 2010

In Temporary Guardianship of Kenneth Simon, a Barnstable County, Massachusetts case, a Probate Court judge presided over a lengthy trial on the fees in the Temporary Guardian’s First and Final Account and ruled that the two attorneys involved in the case must reimburse the sum of $328,770.97 to the estate.  The 32-page judgment can be read here:  Judgment_on_Temporary_Guardian’s_First_and_Final_Account_  The Temporary Guardian had been in charge of Kenneth Simon’s personal and financial affairs for a mere 83 days before his death, yet the accounting showed legal and fiduciary fees of well over $500,000.00, including fees claimed for services after Kenneth Simon’s death, at which time the Temporary Guardianship would automatically have ended.

I was the expert witness hired by the persons who were challenging these fees on the First and Final Account.  My opinion was that what they needed to do on the temporary guardianship should have amounted to $20,000-40,000, and I spent nearly 3 full days on the witness stand being cross-examined.  The Temporary Guardian and his lawyers had initiated divorce, annulment and estate planning actions without even attempting to determine whether Kenneth Simon would have wanted these actions.  In fact, the divorce action was filed on the very day that the Temporary Guardian was appointed, and the Temporary Guardian had admitted at trial that Kenneth Simon had told him when they first met that everything was fine between himself and his wife.  The judge agreed with my opinion that Kenneth Simon’s preferences should have been first and foremost, and that the doctrine of substituted judgment (not the best interests standard) should apply because marriage and estate planning issues involved Kenneth Simon’s personal rights. 

What is important about this case is that it confirms substituted judgment as the proper legal standard to be applied in Massachusetts whenever a Guardian or Conservator is making any type of personal decision for a person who has any history of making decisions or expressing preferences. Without delving into what a person would want, you cannot change somebody’s estate plan, force a Christian Scientist to undergo routine medical treatment, change somebody’s religion, or, as happened here, force a dying man to divorce the convicted prostitute he knowingly and willingly had married a year earlier. 

The judge’s decision has been appealed,  so we will undoubtedly be hearing much more about this case in the future.


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