Guardianship, conservatorship, removal of personal representative, costs, taxation of costs, scope and limits of discovery

In re Estate of Davis
758 S.W.2d 461

 

473.140 applies to guardians/conservators.  Court “may” remove guardian/conservator if that person becomes mentally incapacitated or is convicted of a felony.

 

A guardian or conservator may also be removed on the same grounds as is provided in section 473.140, RSMo, for the removal of personal representatives.  475.110.

 

 

475.050 does not disqualify a convicted felon from acting as a guardian.  Missouri is a “silent state”.  The Convicted Felon as a Guardian: Considering the Alternatives of Potential Guardians with less than Perfect Records, Mike Jorgensen, Florida Coastal School of Law (2006).

 

 

[only cases in annotations on 475.110 suggest that court has discretion.  According to case below, court has discretion even if there is no conviction.]

 

Evidence supported determination refusing to remove paternal grandfather and his wife as coguardians of twin seven-year-old boys, notwithstanding paternal grandfather's invocation of privilege against self-incrimination when asked about his alleged sexual contact with female under 16 years of age, which would have justified inference that, had witness answered question, answer would have been unfavorable to him. Matter of K.A.P. (App. W.D. 1988) 760 S.W.2d 553. Guardian And Ward 25; Witnesses 309

 

Conclusion: Court has discretion, but is not required, to remove guardian/conservator who commits a crime after appointment.  No cases address issue of whether previous conviction (before appointment) provides grounds for denying appointment of guardianship/conservatorship.

 

Trial court's decision to prohibit victim from being deposed about her new allegations of sexual abuse committed upon her by defendant denied defendant of the ability to prepare meaningful defense, and thus constituted reversible error in trial for statutory sodomy and attempted forcible rape; defendant was forced to proceed to trial without being given any opportunity to question victim, the principal witness against him, about her version of what had occurred on one of the only two dates identified by victim on which she claimed to recall specific events of sexual abuse by defendant. State v. Rushing (App. S.D. 2007) 232 S.W.3d 656. Criminal Law 1166(10.10)

 

7. Factors to consider


Even though information sought is properly discoverable, trial court upon objection should consider whether information can be adequately furnished in manner less intrusive, less burdensome or less expensive than that designated by requesting party. State ex rel. Anheuser v. Nolan (App.1985) 692 S.W.2d 325. Pretrial Procedure 22

In ruling upon objections to discovery requests, trial judges must consider not only questions of privilege, work product, relevance and tendency to lead to discovery of admissible evidence, but they should also balance need of interrogator to obtain information against burden in furnishing it. State ex rel. Anheuser v. Nolan (App.1985) 692 S.W.2d 325. Pretrial Procedure 17.1

 

24. Telephone depositions


Telephone deposition of witness who resided in New York was permissible and proper evidence for jury to consider, where deposing party gave sufficient notice, trial court gave other party's counsel opportunity to either be present in New York or at deposing party's office during deposition, and traditional rules regarding deposition upon oral questions were met. Patton v. May Dept. Stores Co. (Sup.1988) 762 S.W.2d 38. Pretrial Procedure 202

 

 

In re Estate of Chevalier
996 S.W.2d 156, 159
Mo.App. S.D.,1999.

 

This conclusion is further supported by the fact that the only authorization under Section 475.085 for the assessment of costs against the person filing the petition is a finding that the person who is the subject of the proceeding is not incapacitated or disabled. Because that did not occur here, and because Marti's estate is insufficient to satisfy the costs, we hold that the trial court was required to assess the costs against the County.

 

Cost of proceedings as to disability or incapacity.

475.085. 1. The costs of proceedings as to incapacity or disability of any person shall be paid from his estate if he is found incapacitated or disabled or, if his estate is insufficient, costs shall be paid by the county; but if the person is found not to be incapacitated or disabled the costs shall be paid by the person filing the petition, unless he is a public employee acting in his official capacity, in which case the costs shall be paid by the county.

2. The court shall accept and act upon a petition as to an indigent respondent without requiring a filing fee. The costs of the proceeding shall be taxed after the court rules on the petition.

Fee of attorney appointed by probate court to represent indigent insane in probate court proceeding is part of cost which should be paid by county when payment cannot be obtained from insane person's estate. Op.Atty.Gen. No. 21, Dale, 8-23-55.

 

 

 

Where verdict in insanity proceeding was against respondent, respondent died, and thereafter court permitted informant, acting with another under appointment of probate court as administratrices of respondent's estate, to enter appearance of the estate, court had no jurisdiction to enter judgment against the estate for costs of the proceedings even if a court may enter judgment for costs though dismissing or abating the cause for want of jurisdiction, there being no statute allowing costs in such instances. In re Thomasson (Sup. 1942) 159 S.W.2d 626. Mental Health 125; Mental Health 158.1

Where administrator pendente lite de bonis non of the estate of deceased respondent in insanity proceeding moved to set aside, for irregularity, a judgment which had ordered abatement of the case, had taxed costs against the estate, and had allowed attorney's fees to attorney who had represented deceased under court appointment, and court set aside judgment, court erred in thereupon awarding a fee to appointed attorney and ordering same taxed as costs. In re Thomasson (Sup. 1942) 159 S.W.2d 626. Mental Health 159

 

Merely because different parties competing for the appointment of a guardian for a third person may agree that the person is incapacitated or disabled does not remove that issue or convert the proceedings to one concerning only the identity of the person to be appointed as guardian, such that statute governing assessment of costs in proceeding "as to incapacity or disability" would not apply. In re Estate of Chevalier (App. S.D. 1999) 996 S.W.2d 156. Mental Health 46

 

Removal of guardian or conservator--incapacitated or disabled person, continuation of guardianship after dissolution of marriage, when.

475.110. 1. …A guardian or conservator may also be removed on the same grounds as is provided in section 473.140, RSMo, for the removal of personal representatives.

Removal of personal representative.

473.140. If any personal representative becomes mentally incapacitated or is convicted of a felony or other infamous crime, or becomes an habitual drunkard, or in any manner incapable or unsuitable to execute the trust reposed in him, or fails to discharge his official duties, or wastes or mismanages the estate, or acts so as to endanger any corepresentative, or fails to answer any citation and attachment to make settlement, the court, upon its own motion, or upon complaint in writing made by any person interested supported by affidavit, after notice to the personal representative, and to the attorney of record, if any, of any personal representative who cannot be served with notice in this state, shall hear the matter and may revoke the letters granted.

To be protected from discovery, trial preparation materials must be (1) documents or tangible things, (2) prepared by or for a party or a representative of that party, (3) in anticipation of litigation or for trial. Ratcliff v. Sprint Missouri, Inc. (App. W.D. 2008) 2008 WL 842430. Pretrial Procedure 358

The work product doctrine protects two types of information: "tangible work product," consisting of trial preparation documents such as written statements, briefs, and attorney memoranda, and "intangible work product," consisting of an attorney's mental impressions, conclusions, opinions, and legal theories. Ratcliff v. Sprint Missouri, Inc. (App. W.D. 2008) 2008 WL 842430. Pretrial Procedure 358

The work product privilege precludes discovery of materials created or commissioned by counsel in preparation for possible litigation and the thoughts and mental processes of the attorney preparing the case. Ratcliff v. Sprint Missouri, Inc. (App. W.D. 2008) 2008 WL 842430. Pretrial Procedure 358

Work product doctrine generally protects from disclosure both tangible work product, which consists of trial preparation documents such as written statements, briefs, and attorney memoranda, and intangible work product, which consists of an attorney's mental impressions, conclusions, opinions, and legal theories. State ex rel. Ford Motor Co. v. Westbrooke (Sup. 2004) 151 S.W.3d 364, rehearing denied. Pretrial Procedure 35; Pretrial Procedure 358

 

 

The attorney-client privilege prohibits the discovery of confidential communications, oral or written, between an attorney and his client with reference to litigation pending or contemplated. Ratcliff v. Sprint Missouri, Inc. (App. W.D. 2008) 2008 WL 842430. Witnesses 198(1)

 

 

IN THE CIRCUIT COURT OF SAINT LOUIS COUNTY, MISSOURI

PROBATE DIVISION

 

IN THE MATTER OF:                                 )

                                                                        )           Case Number 

M B. C                                     )

            Respondent                                         )          

                                                                        )

and                                                                  )

                                                                        )

G M. C                                      )

            Petitioner                                            )

 

SUGGESTIONS IN SUPPORT OF PETITIONER’S MOTION TO SET ASIDE OR AMEND ORDER FOR PAYMENT INTO COURT REGISTRY

 

FACTS

 

            Petitioner filed a petition and amended petition alleging that Respondent is incompetent and disabled.  Said petition also requested the appointment of a guardian and conservator.

            To date, there has been no adjudication as to Respondent’s incapacity and disability. 

On or about June 2, 2008, this Court entered an order requiring Petitioner and Cross-Petitioner to each pay into the registry of the Court the amount of $1,500.  Said order was entered in order to compensate xxxx, court-appointed attorney for Respondent.

On or about June 4, 2008, this Court entered an amended order requiring Petitioner and Cross-Petitioner to each deposit $3,000 into the registry of the Court by June 25, 2008.  Said amended order was entered in order to compensate xxxxxs, court-appointed attorney for Respondent.

 

LEGAL AUTHORITY

 

RSMo. § 475.085.1 states in part:

 

The costs of proceedings as to incapacity or disability of any person shall be paid from his estate if he is found incapacitated or disabled or, if his estate is insufficient, costs shall be paid by the county; but if the person is found not to be incapacitated or disabled the costs shall be paid by the person filing the petition…       

 

In In re Estate of Chevalier, 996 SW2d 156, 1999 (Mo. App. S.D. 1999), the Court of Appeals held that the “only authorization” under Section 475.085 for the assessment of costs against the person filing the petition is a finding that the person who is the subject of the proceeding is not incapacitated or disabled.

ANALYSIS

 

The person filing a guardianship/conservatorship may be required to pay court costs so long as the Respondent is adjudged not incompetent or not disabled.  Id.  So long as the Respondent’s estate is sufficient, the costs must be paid from her estate.  RSMo. §475.085.1.

Here, Respondent’s estate consists of assets valued in excess of $600,000.  In addition, Respondent’s conservator ad-litem is in possession of cash in excess of $20,000.  Unless and until there is a finding that Respondent is not incapacitated, or not disabled, Petitioner cannot be ordered to pay costs or attorney fees.

Additionally, all parties have stipulated during a deposition and court filings that Respondent is incapacitated and disabled.

 

 

                                                                                    Respectfully submitted,

                                                                                    THE SMITH LAW FIRM, LLC

 

                                                                                    __________________________

                                                                                    Neil Smith, Bar Number 56789

                                                                                    225 S. Meramec, Suite 532

                                                                                    Clayton, MO 63105

                                                                                    Phone: (314) 725-4400

                                                                                    Fax: (800) 805-4563

                                                                                    neil@neilsmithlaw.com

 

 

CERTIFICATE OF SERVICE

 

            The undersigned certifies that a copy of the foregoing was sent via first-class U.S. Mail, postage pre-paid, to the following on June 24, 2008: xxxxxxp, Esq.

 

 

                                                                                                _____________________