Allegation
She intentionally and improperly paid fees to herself and subsequently misrepresented those fees in an account filed with the court under oath, in violation of Circuit Court-Probate Division Rules 88 and 108, as well as multiple standards of the NGA. The fees were taken from retroactive Social Security payment sent to the facility where her ward was living at the time.
She submitted charges for her services as a professional guardian found by the trial court to be facially unreasonable, given that the fees amounted to 170% of the ward’s total assets.
Response
(Click on Attachment for supporting document)
The Special Administrator’s conclusions and Judge Kelly’s findings of intention to misrepresent and the unreasonableness of the fees submitted, were based entirely upon the findings of the trial court where the judge determined my fees were excessive and unreasonable, impoverished the ward and that I failed to properly report payment of fees to the court.
The Special Administrator concluded, although he was “reluctant to sanction based upon intent to deceive or that there was knowing conversion” (Attachment 1), the payment of fees “in a relative sense it caused serious injury to him [the ward]” and “deprived him of precious income as an indigent person” (Attachment 2)
Had there been allowed any proper examination of the findings by the trial court, what would have been revealed is the fees were neither unreasonable or excessive and did not deprive the ward of precious income. Although, I agree failing to report a portion of fees paid on the first accounting was a mistake, circumstances surrounding leaving them off the accounting certainly do not rise to the level of intentional misrepresentation and violation of my oath.
As stated by the trial court, the matter, which covered a period of less than 18 months, was ruled on by 8 different judges. (Attachment 3). Over the course of 15 years practicing in various courts and before numerous judges, you learn that every judge has their own preferences and interpretation of procedural rules, often resulting in the need to amend filings depending on the judge. In this instance, the assets from which the initially unreported fees were paid, were not part of the estate for which I was in possession of, nor were they covered by the bond. In a prior ruling (in fact, by the same judge) the court ruled it had no jurisdiction over Social Security funds not in possession of the guardian (Attachment 4). The accounting of ward assets not part of the guardianship estate was actually an issue before the Supreme Court in another matter, again reflecting the difficulties of varying preferences and procedural interpretations from court to court and judge to judge (Attachment 5). There was no assertion by the trial court judge or any party in the matter that I was paid for work not performed.
With regard to the unreasonableness of fees, as reflected in the trial court’s decision, the basis for denying fees were the judge’s belief the duties were “ministerial” and fees totaled in excess of 170% of estate assets (Attachment 6), and were, thereby, violations of Probate Court Rule 88 (Attachment 7) and National Guardianship Practice Standard 22. (Attachment 8)
My appointment in this matter was the result the ward’s father, after being appointed both guardian over the person and estate, motioning the court (judge #1) to appoint another guardian over the estate, stating:
“After reviewing some of the personal and business records . . . I have found that the complexities of the estate is more than I feel competent to handle. The home is in foreclosure, a small business LLC is in arrears, income taxes unfiled for 2 years and probably more . . .. ” and further requested the court, “. . . appoint an appropriate person to manage the estate.” (Attachment 9)
I was appointed in this matter at the request of a judge familiar with my ability to address complex guardianship estate matters. After reviewing the circumstances of the estate, as required under NGA 22, I petitioned the court for approval of my hourly rate (Attachment 10). A customary rate that had been in place for several years and approved in multiple matters in several courts.
The a second judge ruled on the petition:
“neither granted or denied. Fees will be approved if reasonable and beneficial to the ward” (Attachment 10 judge note at bottom)
Upon completion of the guardianship estate matter, a first and final accounting, motion to terminate guardianship over the estate and motion for payment of outstanding fees was submitted to the court. Although all 3 motions were sent to the court together (Attachment 11), the accounting and termination were ruled on by a third judge (Attachment 12) and the motion for fees was ruled on by a fourth judge (Attachment 13).
The judge first denied the motion for payment of outstanding fees on the basis;
“The court is not aware of any authority to approve guardianship fees from non-guardianship assets after the guardian’s authority is terminated” (Attachment 13 judge note bottom of page)
In response a Motion for Reconsideration (Attachment 14) was filed requesting a hearing and stating RSA 464-A:23 allows;
“After a person ceases to be guardian, he or she may maintain an action for recovery of said fees and expenses.” (Attachment 15)
The court denied the motion and request for hearing, and was non-responsive as to the legal basis for reconsideration. Instead the trial court established a new basis for the denial of fees;
“ . . . the court concludes that the fees sought are unreasonable on their face.” and “much of the work done . . . was ministerial in nature and much of the work did not benefit the ward.” (Attachment 16).
In a second Motion for Reconsideration (Attachment 17), an explanation and evidence as to the complexity of this matter, including reference to the ward’s father motioning the court for an estate guardian as noted above, was provided, as well an extensive explanation as to the source of payment under Medicaid rules and reference to the applicable statutes and rules establishing payment would not impact the health, welfare and needs of the ward. It was by footnote in this motion that I disclosed to the court additional guardianship and legal fees paid from funds received by the Social Security representative payee. (Attachment 17 Page 2)
The trial court then scheduled a hearing on December 19, 2014. During the hearing, counsel and I reiterated the multiple and complex problems with the estate (Attachment 18) and the ward’s father again testified as to the difficulties with the ward’s financial circumstances and why he requested an outside guardian over the estate (Attachment 19).
At this hearing, the trial court raised concerns with payment of guardian and legal fees not itemized on the accounting. The trial court transcript reflects both counsel and I explained in detail the source and circumstances of the payment, including confusion with differing directives by court staff and others (Attachment 20), bond company requirements and a prior ruling in another matter (in fact, by the same judge) with regard to the court’s belief it did not have jurisdiction over funds not in possession of the guardian (Attachment 21 & 4). The trial court was also provided an extensive explanation of Medicaid rules requiring the spend down of all assets in excess $2500, which allows for payment of guardian fees with no detriment to the wards health, needs or welfare. (Attachment 22)
Despite testimony at the December 19, 2014 hearing, multiple lengthy explanations contained in threee motions for reconsideration, the provision of numerous documents relevant to the size of the estate and funding source for guardian fees and associated state and federal rules, the trial court still determined that the payment of fees was “unreasonable given the size of the estate”, a determination causing the Special Administrator to conclude the payment of fees “caused him [the ward] serious injury.”
Medicaid rules require that recipients of Medicaid long-terms care services pay excess monthly income towards the cost of care (Attachment 23), with some exceptions:
RSA 464-A:23 establishes guardianship fees:
“shall be paid out of the estate of the ward as a priority over other debts and obligations of the ward to the extent that funds are available and the needs of the ward are being met.” and “After a person ceases to be guardian, he or she may maintain an action for the recovery of said money owed for expenses and services.” (Attachment 24)
Thereby establishing that any funds over the monthly allowable income are to be paid toward outstanding guardianship and legal fees before remaining funds are turned over to the State of NH DHHS for Medicaid long-term care services. In fact the ward received notice that $423, of his excess Social Security income was to be paid to Medicaid each month. (Attachment 25)
Upon the trial courts order to repay fees, as directed, I forwarded the funds to DHHS who then forwarded them to the wards financial representative along with a letter confirming my representations to the court that the ward “is currently open for long-term care services through DHHS and therefore, his resources cannot exceed $2,500″. (Attachment 26). A rule that DHHS again noticed to the financial representative after my forwarding of additional miscellaneous refund checks. (Attachment 27)
The trial court also failed to acknowledge in all matters where the ward is receiving Medicaid long-term care services, Social Security income is the primary source for payment of guardianship fees.
In supporting conclusions I intentionally misrepresented payment of fees, both the trial court judge (Attachment 28) and Special Administrator (Attachment 29) stated that I failed to provide invoices to the trial court until Feb 25, 2015. Refuting both the statements, the December 19, 2014 trial court hearing transcript reflects, that in addition to invoices previously provided, a complete set of invoices was provided to the court, without request, (Attachment 30), along with an offer to redo the accounting. (Attachment 31).
Further refuting findings I acted intentionally to hide fees from the court, I advised that I had been previously directed by the Clerk of Courts to not provide invoices with accountings unless requested by the court. A statement that was confirmed in a letter from the former Registrar and acting clerk of courts (Attachment 32)
Judge Kelly’s further asserts that failure to include payments for legal and guardian fees by the representative payee, constituted a violation of my oath upon signature.
The accounting signature page oath states;
“The undersigned hereby represent(s) that the above accounting is true and accurate to the best of his/her/their knowledge and belief. . .” (Attachment 33)
RSA 464-A:36 II, pertaining to guardian accountings states:
“Said annual account shall specify the amount and type of real and personal property received by the guardian and remaining in his or her control or invested by him or her, and the nature of such investment, and receipts of money disbursed and expenditures, during the preceding time. Upon request of the court, the guardian of the estate shall produce for examination by the court, all securities, evidences of deposit, and investments reported, and any other information or documentation which the court may consider relevant to the accounting of the financial and property transactions of the estate.” (Attachment 34)
Probate Rule 108 C 1 pertaining to accounting standards states:
“the first account of the Fiduciary shall detail the items received by the Fiduciary and for which the Fiduciary is responsible.” (Attachment 35); and
“Compensation of Attorneys, professionals, and Fiduciaries shall be shown separately in summary form, unless otherwise ordered by the Court.” (Attachment 35).
And although Probate Rule 108 E also states:
“The account shall show significant transactions that do not affect the amount for which the Fiduciary is responsible” (Attachment 36)
Based on these circumstances previously outlined, I reasonably believed I was not required to report on the accounting, receipt of funds, or payments by, the Social Security payee. The accounting submitted was “true and accurate to the best of [my] knowledge and belief”.
Any conclusion I intended to hide fees is refuted simply by the fact that, in an effort to be transparent, prior to any hearing, I advised the court of the $4,800 payment of guardianship fees and subsequently, without request, provided all the invoices to the court and offered to correct the accounting. Neither the court nor any party in this matter ever implied fees were charged for work not performed or that was unecessary. There is nothing to substantiate I hid anything from the court. Whatever mistakes I made were easily remedied and caused no harm to the ward.