AUGUST 11, 2003 VOLUME 11, NUMBER 6
The issue facing Florida guardian Barbara Keithly was simple: should she have her bank return the original canceled checks on the guardianship account, or would it acceptable to receive only copies with her monthly statement? Although the question seems simple enough, it provides an opportunity to consider the level of responsibility imposed on guardians and conservators.
Ms. Keithly had been appointed as guardian of the estate (in Arizona and some other states she would have been called “conservator”) of Donald Crosley, a Florida resident, in 1994. At the time Florida (like Arizona and all the other states) had a fairly lax system of checks on the actual work of guardians. A few years later, in the face of mounting controversies and amid news reports of abuses by guardians, Florida (again like Arizona and a number of other states) began to crack down on guardians, imposing new requirements for accounting and creating new offices for monitoring at least some of the cases.
In 2001, the Florida court appointed a “Special Monitor” to review Ms. Keithly’s actions as guardian. The judge ordered her to produce the original canceled checks on the account, so that she could show that the numbers on her accounting actually added up.
Ms. Keithly explained to the judge that she did not have the original checks. Like millions of Americans, she had opted to have the bank return only copies of the fronts of her checks, and the originals had been destroyed. Although it would have only cost $2.00 each month to have the bank send the checks back to her, it would now cost $3,300 to have the bank produce copies of front and back of each check for the accounting period in question.
The court ordered Ms. Keithly to produce the front-and-back copies, and to do so at her own expense. She appealed, but the Florida Court of Appeal upheld the order. Noting that Florida law expressly requires guardians to “obtain a receipt or canceled check for all expenditures,” and that Ms. Keithly (as a professional guardian) presumably knew that rule, the appellate court made clear that producing the copies would be her obligation. Keithly v. Vance, July 25, 2003.
The moral of Ms. Keithly’s story is simple but important: a fiduciary is held to a higher level of responsibility than he or she might reasonably be expected to exercise in handling his or her own affairs. As New York Justice Benjamin Cardozo famously wrote in 1928, “not honesty alone, but the punctilio of an honor the most sensitive, is the standard of behavior.”