Elder Abuse: Violating Fiduciary Duties

Presented by:

John G. Kennan Jr.

Elder Law Attorney John G. Kennan, Jr.

In light of the ever increasing elderly community here on Cape Cod, residents must be cognizant of their rights and the rights of their family members. Elder abuse, both physical and financial, is an ongoing problem in the United States which can ultimately be litigious. New laws have been instituted and existing laws scrutinized with a zero tolerance policy due to the progressively increasing elder abuse cases nationwide. Massachusetts is no exception.

One such scenario involved a trust created by an elderly individual whom was later diagnosed with dementia and was having difficulty managing her finances. My client was appointed as co-trustee of said trust along with her sister. After time, it became evident that my client’s co-trustee, her sister, was improperly using/misappropriating her elderly mother’s assets for own her benefit in violation of her fiduciary duties.

As a result of her breach of duty, we sought the resignation of my client’s sister as trustee. We also sought damages for the sister’s breach of duties in Superior Court. Ultimately, the case settled and my client’s sister was accountable for her actions. While I continue to represent my client as guardian and conservator of her elderly mother, perhaps most rewarding of all was years later that same client contacted me regarding her own estate planning matters and I was able to help her navigate through the entire process.

Key Point:

A fiduciary is required to act in good faith, with reasonable prudence and sound judgment, guided by a due and rational appreciation of the fiduciary obligation and actuated by honest, intelligent and diligent effort to discharge fully the responsibility which that person had voluntarily accepted.  In other words, take your responsibility seriously, be honest and do the right thing.

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