AUGUST 4, 2003 VOLUME 11, NUMBER 5
After incurring the emotional and financial cost of securing a guardianship and conservatorship, family members usually believe that they have been given authority to make all personal and financial decisions for their incapacitated loved one. Though nearly true, that is not quite the case—as Randy Bardwell found out, the judge viewed himself as the “ultimate guardian.” Though the guardian and conservator may have legal authority, the court can review any and all decisions made for the ward.
Mr. Bardwell had been appointed “conservator of the person and estate” (what in Arizona would be called “guardian and conservator”) of his aunt Mary Caroline Lambert Bardwell. He was also acting as trustee of her revocable living trust, which contained much but not all of her $1.8 million in assets. In the first months after his appointment he asked the court’s permission to make $50,000 in gifts to himself, his children and other family members, to enter into a timber management contract for some of her real estate holdings, and to pay himself $27,000 in fees for handling his aunt’s estate. While the court declined to authorize the gifts, it did approve the timber management contract and Mr. Bardwell’s fees.
It turned out, however, that there were several problems with Mr. Bardwell’s behavior as conservator. In addition to the $27,000 in fees, he paid himself nearly $20,000 more. Ms. Bardwell had always been (and remained) opposed to sale of any timber on her land, and Mr. Bardwell had simply ignored her opinion. And he had not posted the conservator’s bond as he had been ordered, and had not provided proper documentation at the time the first fees had been approved. At an early hearing on whether Mr. Bardwell should have been removed, the trial judge said “I made some mistakes by authorizing a fee that I did not have sufficient information on, and … I wish I hadn’t done that.” Ultimately the judge ordered Mr. Bardwell to return all but $4,385.55 of his fees, removed him as conservator, set aside the timber contract and appointed a new conservator.
Although Mr. Bardwell insisted that the judge had shown prejudice against him by observing that he should not have approved the fee, the Mississippi Supreme Court upheld both the judge’s refusal to step aside and his final rulings in the case. Noting that the judge was the “ultimate guardian,” the high court commended the judge for being “astutely aware” of his duty to correct misbehavior by Mr. Bardwell. Conservatorship of Bardwell v. Bardwell, July 17, 2003.