Opinion
11-P-1826
05-31-2012
FAITH E. DELANEY, guardian, [FN1] v. GINO DIGIACOMO, executor. [FN2]
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Faith E. Delaney appeals from a Probate and Family Court order disallowing a $400,000 transfer she made to a trust established in 2007. The probate judge found that her authority as permanent guardian of Albert Pecce ceased upon his death and because the transfer occurred after he died, it was unauthorized. We agree, but remand the case for further proceedings.
Delaney was appointed as temporary guardian of Albert Pecce on August 2, 2006, and as permanent guardian on March 13, 2007. On June 29, 2007, a judge approved a new estate plan for Pecce, including the creation of the 2007 Valerie Pecce Trust (trust), of which Delaney was the trustee. The purpose of the trust was for the supplemental care of Pecce's disabled daughter, Valerie. The judge also approved several transfers to the trust. One of the approved transfers included the $400,000 transfer now contested. Pecce died on August 1, 2007. Although she knew of Pecce's death, Delaney nonetheless made the transfer several hours after he died. 'Upon the death of the ward the authority of the guardian ceases and the only duty that remains is to settle his accounts and turn over any property in his possession to the rightful heir.' Brock v. Rodgers, 184 Mass. 545, 546 (1904). See Minnehan v. Minnehan, 336 Mass. 668, 670 (1958) ('A conservator, like a guardian, has only the care and management of his ward's estate, and title to it, whether consisting of real or personal property, never vests in him but remains in the ward. On the death of the ward his authority to manage the property ends and his only remaining duty is to settle his accounts and turn over the property in his possession to the person rightfully entitled'). Once Pecce died, Delaney no longer had the authority to transfer the funds into the trust. Pecce's estate was entitled to the $400,000 upon his death. Prior to the disallowance of the transfer, Delaney had spent part of the $400,000 as trustee. At the time of judgment, approximately $94,057 had yet to be paid back to the estate. Had the $400,000 not been transferred to the trust, it is unclear whether the estate would have had to make expenditures for the care and custody of Valerie similar to those made by Delaney. We therefore remand for determination whether and to what extent any of the expenses made by Delaney on Valerie's behalf were reasonable, necessary, and appropriate to offset against the amount currently owed to the estate.
There is also evidence that the trust was created in an effort to assist Pecce in obtaining governmental assistance.
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The judgment dated July 8, 2010, on the Substituted (Amended) First and Final Account of the Permanent Guardian is modified to provide that the disallowance of Item 77 may be offset in part. The judgment is otherwise affirmed. The order dated August 3, 2010, is affirmed. The matter is remanded to the Probate and Family Court for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Kantrowitz, Cohen & Meade, JJ.),