Fiduciary Duty Not Breached In Limited Conservatorship Case


When the courts appoint a guardian or conservator to handle an individual’s personal and/or financial affairs, the subject of those proceedings loses virtually all of his or her autonomy and independence. At least that’s the way things have worked for centuries. In recent years, however, the guardianship system in this country has seen a small but detectable shift toward the use of “limited” guardianship and conservatorship.

Missouri law, for example, encourages a finding of “partial” incapacity rather than requiring a determination that a ward is completely incapacitated. To the extent that the ward is able to handle his or her own affairs, a finding of partial incapacity permits the court to limit the powers and responsibilities of the guardian or conservator.

That was the approach taken by the court with Elliott Scott Rogers, whose stepdaughter Donna Gardner sought appointment as guardian and conservator after Mr. Rogers had a stroke. By the time of the hearing Mr. Rogers had improved considerably. The court appointed Ms. Gardner as limited guardian and conservator, and spelled out some of the limitations on her powers. Ms. Gardner was to help transport Mr. Rogers to medical appointments, admit him to the hospital if necessary, and to assist in paying bills, writing checks and managing finances.

Over the next six months Mr. Rogers arranged for the purchase of an annuity naming Ms. Gardner as beneficiary, and hired a lawyer to prepare a new will leaving the bulk of his estate to Ms. Gardner. The checks paying for both of those items, as well as a number of personal bills of Ms. Gardner’s paid from Mr. Roger’s funds, were signed by Ms. Gardner, who was listed as a joint owner on Mr. Roger’s bank account.

When Mr. Rogers died his daughters objected to the payments for Ms. Gardner’s benefit, and the guardianship court ultimately ordered that all the money should be returned. The court also invalidated the will naming Ms. Gardner, on the theory that she had exceeded her authority when she paid the lawyer’s fee for preparation of the will.

The Missouri Court of Appeals disagreed. The whole purpose of limited guardianship and conservatorship, said the appellate court, is to encourage the ward’s autonomy and self-determination. The evidence was that Mr. Rogers understood what he was doing and wanted to benefit Ms. Gardner. It was not a breach of her fiduciary duty for her to help him achieve his goals, and she should not be ordered to return the funds. Even if Ms. Gardner’s actions had breached her fiduciary duty as conservator, said the appellate court, it would have been improper to invalidate Mr. Rogers’ will just because she wrote the check to pay for its preparation. Estate of Rogers, January 13, 2003.

The logic of the Missouri court is, frankly, a little unorthodox, but the result is unassailable. The purpose of a guardianship or conservatorship proceeding should be to protect the ward from exploitation or abuse, but to do so with the least invasive or limiting mechanism available. The court’s decision recognizes that Mr. Rogers’ level of functioning was high enough to permit him to make many of the decisions about his own finances, and the result validates those decisions.

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