The Problem

Richard Donahue, having no children of his own, treated his nephew, David Barnes, very much like a son.  While Richard did not discuss the details of his $30,000,000 estate with his nephew, David was told that he would eventually be appointed as Trustee of his trust. Richard also advised David that he would have Richard’s power of attorney in the event of Richard’s legal incompetency.  Richard’s primary beneficiaries were charitable entities.

Over the course of several months, Richard’s health began to decline. Eventually, he required 24-hour nursing care and was unable to care for himself or to manage his own affairs. David soon received confirmation of Richard’s decline in health from two physicians. These physicians both concluded that the uncle lacked the necessary capacity to conduct his own affairs and in accordance with the Trust and Power of Attorney, David would assume this responsibility.

Following his acceptance of appointment as Trustee, David arranged for a meeting with Richard’s attorney to better understand his duties as Trustee. Upon arriving at the attorney’s office, David was surprised when the attorney informed him that Richard had recently executed a fourth amendment to his trust – after Richard’s physicians had determined him to be legally incapacitated – which ensured that David would not serve as the sole trustee of his uncle’s trust. Instead, David was expected to serve as co-trustee with a corporate trustee. Coincidently, this corporate trustee held most of Richard’s assets.

The attorney made it clear to David that he intended to meet with the corporate trustee and proceed to administer the Trust with or without his participation. The attorney continued to state that he would treat David’s hesitation as a decision to decline to serve as co-trustee.

Our Approach

Intimidated by the attorney’s attitude and actions, David retained Rhoades McKee.  We contacted the attorney seeking to better understand the situation. Surprisingly, the attorney was not interested in discussing any resolution of the matter. Instead, the attorney reiterated his “take it or leave it” position. We responded by having David terminate the attorney’s representation of Richard by exercising the power of attorney.

Unfortunately, the attorney responded by having the incompetent Richard execute another legal document, this time a revocation of the power of attorney. We responded by filing an emergency motion with the probate court. Our team sought a temporary restraining order preventing the attorney from having the uncle execute any additional legal documents until a hearing could be held on the validity of the fourth amendment to the trust and the validity of the revocation of the power of attorney.

The Result

The probate court granted our restraining order and ruled in David’s favor: the purported fourth amendment to the trust was invalid. Based upon that ruling, the parties settled the remaining issues in litigation. David was allowed to serve as the trustee of his uncle’s trust and to exercise the power of attorney on his uncle’s behalf as Richard had intended.


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