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In Matter of Conservatorship of J.R.

Case No. DA 10-0256 (MT S.Ct., Apr. 5, 2011)

Justice James C. Nelson delivered the Opinion of the Court.

J.R. appeals an order of the District Court for the First Judicial District, Lewis and Clark County, dismissing his claims against his conservator for negligence and for breach of fiduciary duty. We affirm.

J.R. raises four issues which we have restated as follows:

1. Whether the District Court erred in dismissing J.R.’s claims of breach of fiduciary duty and negligence because J.R. did not offer expert testimony.

2. Whether the District Court’s ultimate finding that the conservator appropriately managed J.R.’s assets and estate was erroneous.

3. Whether the District Court erred in discharging the conservator without liability.

4. Whether the District Court abused its discretion in ordering payment of the conservator’s attorney’s fees from the conservatorship’s assets.
 

 

Judge(s): James C. Nelson
Jurisdiction: Montana Supreme Court
Related Categories: Malpractice , Wills / Trusts / Estates
 
Supreme Court Judge(s)
Patricia Cotter
Mike McGrath
James Nelson
Jim Rice
Michael Wheat

 
Trial Court Judge(s)
Jeffrey Sherlock

 
Appellant Lawyer(s) Appellant Law Firm(s)
Joey Jayne Joey Jayne Law Office
Janet Pumphrey Law Office

 
Appellee Lawyer(s) Appellee Law Firm(s)
Thomas Johnson Keller Reynolds Drake Johnson & Gillespie PC
Jacqueline Lenmark Keller Reynolds Drake Johnson & Gillespie PC

 

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conservator, before filing the first accounting. this accounting covered the period from property on his own. west 1984)); see also romans v. lusin, 2000 mt 84, 17, 299 mont. 182, 997 p.2d 114 moreover, many of the fees that j.r. now takes issue with were the fees shevlin charged 33 this is the same argument that shevlin made in issue 1 with which we expressed 36 consequently, shevlin requested that robin send him copies of various household 32 the district court determined that shevlin's management of the conservatorship the part of the conservator . . . ." thus, j.r. maintains that because this litigation is psychiatrists, veterinarians, lawyers, architects and engineers, accountants, does a trustee. 11 in its october 3, 2007 order appointing shevlin, the court stated: "shevlin shall liability. j.r.'s contention that the attorney's fees were used to defend shevlin, the attorney's fees is set forth in 72-34-114, mca. pointed out that there was no adverse impact to j.r. 79 affirmed. legislative session as j.r. had done in years past. j.r. blames the failure to rent the condo counsel of record: 19 mt 86, 37, 309 mont. 315, 48 p.3d 697. thus, based on 72-5-423 and 72-34-115, conservator. in addition, j.r. pointed out that his assets are dwindling rapidly because of attorney's fees. in re estate of berthot, 2002 mt 277, 55, 312 mont. 366, 59 p.3d 1080 /s/ jim rice reasonable as shevlin's management of j.r.'s assets and estate was appropriate to 47 shevlin tried to apply for va benefits for j.r., but the va does not recognize and ability. most of the decided cases have dealt with surgeons and other shevlin to sell j.r.'s helena condo and to expend whatever monies were necessary for inventory and ship j.r.'s personal property, yet on the other hand he complains that shevlin also sought clarification from the court regarding portions of its prior order janet hetherwick pumphrey, attorney at law, lenox, massachusetts 10 associated with the conservator, to advise or assist the conservator in the try to sell. however, the conservator has "discretion in deciding what to include and how to value corresponding receipts. this system worked for only a few months before robin insisted the multiple parties involved in maintaining a long-distance conservatorship. expert testimony needed to establish that shevlin breached the standard of care for his we concur: 17 correct standard is whether shevlin failed to use the care, skill and diligence of a prudent in and for the county of lewis and clark, cause no. bdg 2006-18 robin or j.r. would be used for j.r.'s direct care other than through bills and receipts received from contacted him shortly before the movers arrived to inform him that she would not be members, and the district court's order, it was not reasonable for shevlin to just assume 220, 225 p.3d 1253. this court has repeatedly held that absent a contractual agreement p.3d 1080 (citing in re eggebrecht, 2000 mt 189, 18, 300 mont. 409, 4 p.3d 1207; in not be included. shevlin did submit independent documentation with the accountings the condo was put on the market in september 2008, the real estate agents advised clearly the court believed that shevlin had special skills that the court expected him to established by expert testimony. compensation and expenses. if not otherwise compensated for negligence against shevlin because j.r. did not provide expert testimony to establish the 18 j.r.'s direct care. the court prohibited shevlin from providing any money to j.r.'s reimbursed for the fees paid to shevlin's attorneys to defend shevlin in this case. not bill for all of the time spent packing up j.r.'s condo. 31 j.r. contends that the fact that the court removed shevlin as conservator is "strong 16 removed from j.r.'s condo at the time of the condo's sale and that it was necessary to testimony. j.r.'s allegations did not involve shevlin's special skills as a cpa (which april 5 2011 family members "unless it is for reimbursement for the direct care of [j.r.]." use in his fiduciary capacity as conservator of j.r.'s estate. 3 1. whether the district court erred in dismissing j.r.'s claims of breach of disbursements." van full of j.r's furniture and personal property was sent to j.r. in massachusetts. (4) shevlin failed to file an inventory; (5) shevlin filed late and inadequate accountings; failed to exercise the care, skill, prudence, and diligence that any prudent person would justify a court in withholding compensation altogether, a flagrant violation of the duties 73 accordingly, we hold that the district court did not err in discharging shevlin for appointment of a conservator for j.r. she stated in her petition that a conservator was 62 shevlin billed the conservatorship his regular hourly rate which is determined by 42 j.r. also complains that shevlin should have rented the condo during the from the court. purpose for which the conservator was appointed, may act without court november 24, 2006. in march 2007, nickol filed an inventory of conservator showing clerk 2. the court's use of the wrong standard 4. inventory and personal property standard of care, whether that standard was breached, and whether any such breach is one in which statutory provisions governing the awarding of attorney's fees and costs would require expert standard-of-care testimony), but rather, were simply that shevlin /s/ james c. nelson 55 j.r. complains that the accountings filed by shevlin were late and that they were 76 shevlin argues on the other hand that because he continued to receive special skills as a cpa, j.r. failed to provide sufficient evidence that shevlin breached law is correct. berthot, 21. portion of his practice to estate planning and business consulting. shevlin petition for orders subsequent to appointment. the petitioners asked the court to would use to accomplish the purposes of the trust as determined from the trust in this case, the district court determined, and we agree, that shevlin's fees were malpractice cases that there can be no finding of negligence in the absence of expert 9 possess (a standard of care which does not require expert testimony). on the record 17 we review a district court's findings of fact to determine whether those findings proposition, j.r. cites in re allard, 49 mont. 219, 225, 141 p. 661, 664 (1914) (the while shevlin should have timely performed and filed that inventory, we agree with the were expended to protect the conservatorship. accordingly, we hold that, on that basis, facts here. cooperate with or even recognize the existence of the conservatorship. thus, contrary to nor robin would give shevlin the necessary authority to communicate with the va, discretion. prescott v. innovative resource group, llc, 2010 mt 35, 16, 355 mont. 30 j.r. claims that the district court erred in finding that shevlin's management of filed: malpractice. mca, a conservator with special skills also must be held to the standard of the skills carlson v. morton, 229 mont. 234, 239, 745 p.2d 1133, 1137 (1987) (quoting w. page (w) employ persons, including attorneys, . . . even though they are in its april 27, 2010 findings of fact, conclusions of law and order, the district court conservator to $180 per hour when shevlin was removed as conservator. shevlin points 53 at robin's direction, shevlin shipped most of j.r.'s personal belongings to him in (3) a conservator, acting reasonably in efforts to accomplish the 23 69 although the district court found fault with some of the things shevlin did as 19 the district court dismissed j.r.'s claims of breach of fiduciary duty and transfer the conservatorship to massachusetts, to implement a trust and long-term-care 37 shevlin did pay j.r.'s monthly credit card bill even though robin stopped sending "professional persons in general, and those who undertake any work 39 the district court's order authorized shevlin to sell j.r.'s condo. based on the accountings, he waited until may 14, 2009, more than 19 months after his appointment as 20 section 72-5-427, mca. spen[t] over 35 years working in public accounting. he has extensive conservator. shevlin admits that he did not file an inventory of j.r.'s personal property. in the matter of the conservatorship of and unfettered discretion" to distribute the entire principal of the trust to robin and /s/ mike mcgrath massachusetts. neither j.r. nor robin notified j.r.'s counsel of j.r.'s move. solved a lot of problems if the [initial cash offer] had been accepted. however, that j.r. and obtained at least one monthly pension payment on j.r.'s behalf in the amount of conservator's attorney's fees from the conservatorship's assets. pointed out that with d.a. davidson & co., and a checking account at mountain west bank. not only was shevlin a cpa, he possessed expertise in the area of estate planning. and later, those powers set forth in [] 72-5-427 and -428, mca." the court also authorized 70 j.r. contends on appeal that this was error by the district court because the very 2 j.r. raises four issues which we have restated as follows: keeton, prosser and keeton on the law of torts at 32)). the court stipulated that no money was to be provided to any of j.r.'s family members duty; it is only required to prove professional negligence such as in cases of medical conclude that if, as here, a conservator is appointed in reliance on his or her special 58 j.r. complains that shevlin bought some of j.r.'s personal property to use in 13 68 whether the district court erred in discharging the conservator without liability. district court's conclusions of law to determine whether that court's interpretation of the petition the court for transfer of the conservatorship to massachusetts. that j.r. is no longer capable of understanding his bank or financial statements; that caused the injury and damages about which j.r. complained. j.r. argues on appeal that performance of administrative duties . . . ; [and] 3 the remainder of the property was to be donated to charity or discarded. the donated 74 whether the district court abused its discretion in ordering payment of the joey jayne, joey jayne law office, arlee, montana justice james c. nelson delivered the opinion of the court. bickering of j.r.'s children and step-children, and the continuing pattern of robin breach of fiduciary duty and negligence brought by the petitioners against shevlin; and instrument." in addition, if a trustee has special skills, then the trustee "is held to the store the items until he received further instructions from j.r. and robin on what to do that standard was breached, and whether any such breach caused the injury and damages even this lesser, prudent person standard of care. 72-34-114(3), mca (compliance with the prudent investor rule is not to be determined 12 standard of review 18 whether the district court erred in dismissing j.r.'s claims of breach of fiduciary 22 while 72-34-115(2), mca, is framed in terms of a "trustor" appointment, we and efforts by various family members to undermine the conservatorship. a hearing on a duty and negligence on the ground that j.r. did not offer expert standard-of-care art work that he and his wife had collected over the years. trust she proposed. shevlin rejected the trust because it violated specific terms of the issue 1. clark county, dismissing his claims against his conservator for negligence and for breach 75 j.r. argues that this litigation was brought "because of the inexcusable conduct on 14 on october 19, 2009, j.r. filed a motion for the removal of conservator and that the court enjoin petitioners from interfering with the performance of his duties. was "appropriate" because he did what was ordered by the court in its october 2007 7 in may 2006, at the time the conservatorship proceedings in this case began, j.r. 25 reading 72-5-423, mca, together with 72-34-114 and -115, mca, we prudence, and diligence under the circumstances then prevailing that a prudent person have all powers granted under law to act as conservator, specifically, but not limited to, j.r.'s personal property. spends approximately 41 percent of his chargeable time engaged in __________________________________________ plan recommended by j.r.'s massachusetts legal counsel, and to order that shevlin's 5. late and inadequate accountings then an alleged breach of fiduciary duty involving those special skills requires prudence, and diligence" that any prudent person would possess, then expert testimony is for appellee: cheryl during j.r.'s lifetime. thus, shevlin had no assurance that the funds in the trust the firm of junkermier, clark, campanella, stevens, p.c. (jccs). shevlin (6) shevlin sold some of j.r.'s property to himself, and (7) shevlin charged exorbitant very difficult situation and did not receive the full cooperation that he should have been everything in each room, and i have photographs." shevlin further points out that j.r.'s of utilities and other expenses to set an appropriate amount for reimbursement. while issued an order allowing nickol to withdraw as conservator. in her place, the court 67 accordingly, we hold that the district court's ultimate finding that shevlin 29 whether the district court's ultimate finding that the conservator appropriately the parties involved. conservator's management may be checked and the accounts verified." redies, 20. prior to that listing, shevlin had received a cash offer for the condo at $170,000. shevlin /s/ patricia cotter 49 the court noted that robin proceeded to establish eligibility for va benefits for pointed out that the legislative session was from january to april, 2009, and neither bill the conservatorship his normal hourly rate, his billing statements reflect that he did district court determined that because of the continued bickering of j.r.'s children and ordered payment from the conservatorship's assets of shevlin's attorney's fees incurred brother william as conservator. thus, shevlin's removal as conservator is evidence of testimony to support it . . . .' " carlson, 229 mont. at 239, 745 p.2d at 1137 (quoting (2) the court used the wrong standard; (3) shevlin failed to adequately provide for j.r.; 78 in this case, the district court found that a large number of shevlin's fees and the condominium in helena where j.r. had lived for many years, an investment account robin, the court believed it to be in the best interests of all parties to appoint j.r.'s trustees as specified in title 72, chapter 34, part 1. more specifically, under 72-34-114, person. the purpose of the 90-day requirement is to "furnish a means by which the before us, however, we conclude that the court's error was harmless because, as a. reimbursement for j.r.'s care wall sent his apology for failing to deliver it sooner citing the press of business. shevlin doctors, but the same is undoubtedly true of dentists, pharmacists, conservator's attorney's fees from the conservatorship's assets. communications from robin and from j.r.'s massachusetts counsel that shevlin and cheryl, j.r.'s brother william and his sister betty, filed as "interested persons" a is a shareholder and member of the jccs board of directors. shevlin has 8 the district court scheduled a hearing on marsha's petition for september 26, for appellant: issue 4. d. va benefits financial care plans for the elderly. shevlin to reimburse j.r. for the fees which shevlin paid to himself. in support of this 26 however, even if the conservator possesses special skills, but the alleged breach of receipts for the expenses on the credit card statements. at the hearing in this matter, 54 we do not condone shevlin's failure to file a complete inventory as required by 6. sale of property to shevlin 72-34-105, mca, and that obtaining this property for shevlin's personal use was and has been diagnosed as suffering from early alzheimer's disease. she further stated provides for reimbursement to any person for expenditures for services rendered to a re estate of bolinger, 1998 mt 303, 29, 292 mont. 97, 971 p.2d 767). we review a professional advisory services, including estate planning and long-term appropriately managed j.r.'s assets and estate was not clearly erroneous. p.3d 532 ("conservators are thus under the same duties as trustees."). "it seems that some of [j.r.'s] children even refuse to acknowledge the existence of the have provided reimbursement to robin had robin shown that the expenditures were and, while nickol filed an inventory of conservator in march 2007, it did not include discussed infra, j.r. failed to provide sufficient evidence to prove that shevlin breached 21 do exist. actions. term as conservator persisted throughout shevlin's conservatorship. other relevant facts fees. we address each of j.r.'s assertions in turn. regarding these and other problems with the conservatorship will be set out more fully for sorting and packing j.r.'s personal belongings. shevlin testified that although he did 61 j.r. claims that shevlin paid himself exorbitant fees as conservator for attending petition for orders subsequent to appointment filed june 16, 2009, the petitioners, which in its appointment and that the conservatorship had not been damaged through shevlin's 9 the parties eventually stipulated to a limited conservatorship, and the district where necessary in our discussion of the issues presented. issue 2. 38 j.r. also complained that he was constantly embarrassed by not having ready cash. accountings filed by shevlin was "supplemented by detailed itemization of receipts and paid from the conservatorship assets. unless the expenditure was shown to be for j.r.'s direct care. 71 contrary to j.r.'s assertions, the district court did not remove shevlin as termination of the conservatorship alleging deficiencies in shevlin's performance as mca, a trustee is charged with the duty of administering the trust "with the care, skill, (citing in re estate of dern family trust, 279 mont. 138, 154, 928 p.2d 123, 133 (1996); standard. shevlin further argues that the standard of care may not be inferred, it must be moved j.r. to massachusetts, shevlin had no other way to verify that the funds he sent our agreement. and, as we indicated in issue 1, not only did j.r. fail to provide the 7. exorbitant fees that the value of j.r.'s assets at that time was more than $290,000. these assets included testimony because shevlin, as a cpa, is held to a higher standard of care than an ordinary 2006. however, shortly before the hearing date, j.r.'s daughter robin, who opposed the shevlin that it would not show well if it was occupied by renters. entitled to from [j.r.'s] children." in shevlin's place, the court appointed j.r.'s brother to render services in the practice of a profession or trade is required to exercise the skill statements and tax returns were not provided to shevlin by robin or j.r. so they could managed j.r.'s assets and estate was erroneous. it was too much trouble to keep track of the receipts. fiduciary duty and negligence because j.r. did not offer expert testimony. nothing more than the lack of cooperation shevlin received from j.r.'s family. j.r.'s claim, wall did not submit his bill to shevlin until june 2008. along with the bill, rejected that offer as being below the fair market value of the property. nevertheless, protected person, or when reasonable to expect they will be performed. including his work papers supporting each accounting; however, j.r. objected to these this was error because expert testimony is not required to prove breach of a fiduciary breach of duty which does not result in injury to the ward's estate will not ordinarily factual and procedural background "good cause" for shevlin's removal and, according to j.r., is strong evidence that july 2008. he sent the remaining property requested by j.r. and robin in january 2010. on a sink." redies, 22. conservator, the court determined that they were "minor errors" or "insubstantial" and committed any violation of his duties. instead, the court pointed to the continued and make him eligible for veteran's benefits of up to $2000 per month and massachusetts determination regarding the strength and weight of conflicting testimony." brimstone and knowledge normally possessed by members of that profession or trade . . . .' "). abstractors of title, and many other professions and skilled trades." person. j.r. also points out that under 72-5-423, mca, and 72-34-114 and -115, order. j.r. claims that rather than a standard that shevlin acted "appropriately," the person and expert testimony is necessary to establish that standard and any breach of that 23 in its october 3, 2007 order wherein the district court appointed shevlin as or statutory provision, the prevailing party in a civil action is not entitled to recover j.r.'s personal property in shevlin's garage. shevlin points out that these items had to be that shevlin sold the property to himself at less than market value. the prudent person standard of care. thus, the district court's determination that conservator is to file with the court a complete inventory of the estate of the protected interfering with the conservator's efforts devoted to j.r.'s conservatorship, both before robin nor j.r. mentioned renting the condo until the end of 2008, long after a moving fact, conclusions of law and order wherein the court removed shevlin as conservator; 72-5-424, mca. here the only property not inventoried was j.r.'s personal property. 60 j.r. also complains that at the time of the hearing, shevlin was holding some of on the fact that shevlin sold some of j.r.'s furnishings to himself. however, shevlin would be used for j.r.'s direct care. normally incompetent to pass judgment on questions [regarding what standard to apply property and the sale of some of j.r.'s personal property to himself, we agree with the listing agreements. with the amount of money robin wanted to charge for caring for j.r. in her home. thus robin provided a few current bills, she refused to provide any past bills. shevlin would 64 furthermore, j.r. complains on one hand that shevlin did not do enough to that all money sent to robin would be used for j.r.'s direct care. and, because robin . . . 1 j.r. appeals an order of the district court for the first judicial district, lewis and court's order. the trust named almgren and robin as co-trustees and gave them "sole district court that shevlin substantially complied with the district court's order market that began in 2007. the asking price was eventually reduced and the condo sold 5 3. whether the district court erred in discharging the conservator without without liability. 72 as to shevlin's fees, 72-5-432, mca, provides: to properly perform his fiduciary duties. in his response to the petition, shevlin requested 7 6 4. whether the district court abused its discretion in ordering payment of the 44 j.r.'s massachusetts legal counsel, paula almgren, recommended that an relying on the special skills of the person to be appointed. with the items. honorable jeffrey m. sherlock, presiding judge marketing the property due to significant structural problems with the property, problems they disagreed. consequently, it is evident that the billing statements were received. conservator because he committed a "flagrant violation" of his duties or even that he 40 one of the real estate agents testified at the hearing that he had difficulties the conservator is to act as a fiduciary and observe the standards of care applicable to 50 section 72-5-424, mca, provides that within 90 days of appointment, a services rendered, any visitor, lawyer, physician, conservator, or special 4 2. whether the district court's ultimate finding that the conservator appropriately 2003. j.r.'s daughter marsha initiated this action when she petitioned the district court $100 for a lamp repair. johnson & gillespie, p.c., helena, montana and after shevlin's appointment, as the reason for shevlin's removal. the court stated: 51 j.r. complains that an inventory of his personal property was not done by either jacqueline t. lenmark, thomas q. johnson, keller, reynolds, drake, (x) prosecute or defend actions, claims, or proceedings in any property was receipted for tax purposes. by hindsight). massachusetts. however, many of the problems that had plagued nickol throughout her healthcare benefits which would pay up to 60 hours of home health care for j.r. j.r. appointed joseph shevlin, a helena cpa, to act as successor conservator for j.r. regarding the district court's order appointing him as conservator and to seek instruction 56 as to the completeness of the accountings, shevlin explained that various bank november 5, 2007, through january 5, 2009. the second accounting provided by there. consequently, shevlin had to undertake the sorting and packing of j.r.'s personal 21 section 72-5-423, mca, provides that in the exercise of the conservator's powers, 45 almgren discussed the trust with shevlin and provided him with a copy of the 43 furthermore, as shevlin pointed out, the objective was to sell the condo, and when conservator status without the protected person's signed consent. because neither j.r. shevlin agreed to send $200 per month if j.r. or robin would send him the managed j.r.'s assets and estate was erroneous. issue 3. rental properties owned by shevlin. shevlin admits that he purchased a few items for fair 20 shevlin argues on the other hand that it was necessary for j.r. to present expert 11 5 are clearly erroneous. in re estate of berthot, 2002 mt 277, 21, 312 mont. 366, 59 j.r. faults shevlin for failing to pay a bill from one of j.r.'s legal counsel, stefan wall, and judge the credibility of witnesses, we do not "second guess the district court's would have been familiar with jccs's billing practices. in addition, the court pointed robin and that she compiled extensive lists of the items she wanted sent to j.r. in c. the trust in the supreme court of the state of montana performance of the conservator's duties . . . . authorization or confirmation to: mining, inc. v. glaus, 2003 mt 236, 20, 317 mont. 236, 77 p.3d 175 (quoting double keeton et al., prosser and keeton on the law of torts 32 (w. page keeton ed., 5th ed., da 10-0256 shevlin only directly provided $2000 to j.r. j.r. cites to 72-5-428, mca, which 8 the district court did not abuse its discretion in ordering that shevlin's attorney's fees be failing to pay the bill delayed j.r.'s receipt of va benefits by one year. contrary to pension benefits. j.r. complains that shevlin did not seek va benefits on his behalf. conservator for a protected person--that is, in selecting the conservator, the trial court is conservator appointed in a protective proceeding is entitled to reasonable petition to amend the conservatorship was held on august 17, 2007. thereafter, the court conclude that a court effectively stands in the shoes of the trustor in appointing a necessary for j.r.'s protection because he suffers from severe short-term memory loss 15 these matters were heard by the district court over three days, february 16, 2010, about which the protected person complains. conclusion comes from the application of hindsight some three years after the fact." see march 9, 2010, and march 10, 2010. on april 27, 2010, the court entered its findings of faults shevlin for not placing j.r.'s assets into this irrevocable trust. 14 decided: april 5, 2011 46 j.r. is a veteran of the united states navy and is potentially eligible for veteran's when special skills are employed], . . . it has been held in the great majority of appointed j.r.'s brother william as successor conservator; approved shevlin's 57 again, we cannot find fault with the district court's determinations based on the promised. submitted on briefs: january 20, 2011 standard of the skills represented." section 72-34-115, mca; redies v. cosner, 2002 advice of two helena real estate agents, shevlin initially listed the condo at $234,000. shevlin could not proceed. 13 on june 16, 2009, several of j.r.'s family members, including daughters robin conservatorship action, removed j.r. from helena and took him to live with her in shevlin's management of the conservatorship was "appropriate" was not error. to minor details and that he never received any billing statements detailing shevlin's fees. compensation from the estate. shevlin or the court with an accounting of the use of those funds. solely for j.r.'s direct care. but, because of the earlier complaints by other family 1. removal of shevlin as conservator 22 in addition, this court noted the following regarding "special skills": b. condo rental and sale 2011 mt 62 experience with tax preparation and supervision. shevlin also devotes a 59 we agree with j.r. that a conservator has a duty to avoid a conflict of interest, see a protected person. shevlin is a certified public accountant practicing in helena with 65 because we have determined that the trial court is in the best position to observe jurisdiction for the protection of estate assets and of the conservator in the 63 contrary to j.r.'s assertion that he never received any billing statements, in their conservatorship fees and attorney's fees be returned to j.r. because of shevlin's failure members had participated in the packing and shipping of j.r.'s personal property as calling for special skill, are required not only to exercise reasonable care in 52 nevertheless, shevlin points out that j.r.'s personal property was well known to trial court that his failure to do so under the facts of this case was not grounds for his provide for j.r.'s care. william as successor conservator in the hope that he would be better able to work with robin admitted that she or j.r. had been reimbursed for all of j.r.'s expenses except for [emphasis added.] 6 conservator because of persistent family interference with the performance of her duties 3. failure to provide for j.r. naming him as conservator. the petitioners subsequently amended their petition adding accountings; approved the sale of j.r.'s condo; dismissed with prejudice the claims of included in this valuation were any of j.r.'s personal belongings such as the antiques and massachusetts. in fact, robin testified: "i just knew the house very well; i knew conservator, the court pointed out that it was familiar with shevlin and noted that not breach of fiduciary duty and negligence against shevlin 28 accordingly, we affirm the district court's decision to dismiss j.r.'s claims of regarding the conservatorship. mca, a conservator has the same duty to use any special skills he or she possesses as conclusion paid the bill shortly after receiving it. shevlin breached his fiduciary duty. thus j.r. argues that the court should have ordered appeal from: district court of the first judicial district, shevlin charged exorbitant fees for doing so. we also note that it would not have been represented. see in re guardianship of saylor, 2005 mt 236, 14, 328 mont. 415, 121 fiduciary duty does not involve those skills, but rather, involves only the "care, skill, inadequate or incomplete. although the district court had ordered shevlin to file annual 15 skills,1 4 necessary for shevlin to spend time packing j.r.'s personal belongings if j.r.'s family thompkins v. fuller, 205 mont. 168, 186, 667 p.2d 944, 954 (1983)). however, this case 16 j.r. now appeals the district court's decision. was 78 years old. he has five children and three step-children. his wife passed away in that shevlin corrected or compensated for all of them. the court further found that evidence that shevlin did breach his fiduciary duty." contrary to j.r.'s contentions, the on february 8, 2010. the district court expressed its disappointment that shevlin did of fiduciary duty. we affirm. 66 with the exception of shevlin's failure to compile an inventory of j.r.'s personal interpreted as threatening, it was necessary for shevlin to employ counsel to advise him not required to establish that standard of care inasmuch as the "prudent person" standard included robin, point out various items from shevlin's billing statements with which j.r. also faults shevlin for refusing to fund the trust with j.r.'s assets claiming that it ("the restatement (second) of torts 229a (1965), provides that `one who undertakes expert testimony to establish the standard of care for the exercise of those skills, whether conservatorship statute "contemplates a faithful stewardship. while a mere technical 35 in its october 3, 2007 order in this matter, the district court expressed concern duty and negligence because j.r. did not offer expert testimony. bills from before j.r. moved in with her so that shevlin could determine a baseline usage fact that the court removed shevlin as conservator "implicitly suggests" that there was market value, but that these items were ones that robin and j.r. told him to discard or to $1,359. however, robin placed the check in a special account and refused to provide 41 the district court noted in its order that "[i]n retrospect, it certainly would have 10 in june 2007, nickol requested that the court terminate her appointment as in december 2009, netting j.r. only $137,000. 77 we review a district court's grant or denial of attorney's fees for an abuse of 27 here, the district court erred in dismissing j.r.'s claims of breach of fiduciary /s/ michael e wheat those of his counsel were attributable to the failure of some of j.r.'s children to entirely improper. nevertheless, as the court stated, j.r. did not introduce any evidence of the trust will do so."). at hourly rates ranging from $165 to $225 per hour. in 2007 that would have brought j.r.'s assets below the $80,000 figure. j.r. claims that not file an accounting within one year of his appointment as conservator, but the court what they do, but also to possess a standard minimum of special knowledge ultimately shevlin performed his duties as conservator in the manner the court anticipated shevlin negotiated with the real estate agents to exclude prior potential buyers from the 1 48 j.r. could access his va benefits once his assets were reduced to $80,000 or less. 2 documents and they were withdrawn. nevertheless, the court noted that each of the the demands and influences of others. 34 j.r. complains that shevlin failed to provide funds for j.r.'s care, noting that removal. out that j.r. and robin hired various counsel throughout the conservatorship proceedings 12 during his conservatorship, shevlin arranged for the sale of j.r.'s condo and j.r.'s estate was "appropriate" because: (1) the court removed shevlin as conservator; "intentionally defective grantor trust" be set up for j.r. that would deplete j.r.'s assets step-children, and the continuing pattern of interference with the conservatorship by aa corp. v. newland & co., 273 mont. 486, 494, 905 p.2d 138, 142 (1995)). 24 this court stated in carlson that " `[s]ince juries composed of laymen are daughter cheryl was supposed to help sort and pack j.r.'s personal property, but she court appointed the first conservator, cindy nickol of capital city case management, on out that j.r. was a client of jccs for many years prior to the conservatorship, thus j.r. shevlin covered the period from january 5, 2009, through january 5, 2010, and was filed j.r., significant funds owned by him have disappeared; and that he is extremely vulnerable to delayed j.r.'s eligibility for receiving va benefits. the items in the estate. a conservator [need not] write down every half bar of soap sitting conservatorship and have failed to cooperate with it. in short, shevlin was placed in a oversaw the packing and shipping of much of j.r.'s personal property to j.r. in claims of negligence and breach of fiduciary duty against shevlin. with the common area around the property, and the slump in the nationwide housing jccs and which ranged from $155 per hour when shevlin was first appointed in defending this action. the order further provided that the successor conservator could completely irrelevant to the proper administration of the conservatorship, he should be


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