The Trust Lawyers Blog

Advanced Elder Care

Posted by Dave DePinto on Fri, Jun 10, 2016


1. Common Perpetrators  

Common perpetrators include "anybody" such as trustees/fiduciaries, children, family members, caretakers, home aides, nurses, attorneys, agents, neighbors, etc.

 a. Top Liability Claims and Causes of Action 

 Breach of Fiduciary Duty:  A fiduciary is a person who undertakes to act in the interest of another person.[1]

Trustee: In every estate there are two estates:  the trustee's legal estate and the beneficiary's equitable estate. Legal title to the trust property is held by the trustee, unless one of the following exceptions applies:  (1) it is a passive trust involving real estate; (2) the subject of the trust is an equitable interest; or (3) the settlor expresses a contrary intent. Therefore, it is said the trustee owns the property. It is the beneficiary who possesses the actual economic interest, an equitable interest itself being an interest in the property which is shared between the current beneficiary and remainderman. During the lifetime of the trust, while the trustee possesses the legal title, trustee owes certain duties to each beneficiary. These duties would income the duty to be generally prudent in the administration of the trust, the duty not to self-deal, the duty to give personal attention to the affairs of the trust, the duty to account to the beneficiaries, and the duty to treat classes of beneficiaries impartially. The duty of loyalty is not absolute since the trustee has a duty to act solely in the interests of the beneficiary, subject, however, to an overriding duty to carry out the terms of the trust.[2]

Personal Representative (Executor):  Until termination of his appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. Those others would include the decedent's heirs and devisees. Heirs are those entitled to take under the law of intestacy. Devisees are those who succeed to a decedent's net probate estate by testate succession. A decedent's probate estate is the estate subject to administration under applicable laws relating to the decedents' estates. The relationship of the personal representative to the estate is that of a trustee. Accordingly, a personal representative is a fiduciary who must observe the standards of care applicable to trustees. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and applicable law and as expeditiously and efficiently as is consistent with the best interests of the estate.[3]

Conversion:  According to Barron's Law Dictionary, conversion is "the tortuous deprivation of another's property without his authorization or justification. To constitute a conversion there must be a wrongful taking, or a wrongful detention, or an illegal assumption of ownership, or an illegal [use or misuse].

Criminal Larceny:  A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof. Larceny includes a wrongful taking, obtaining or withholding of another's property, with the intent prescribed above, committed in any of the following ways:

by conduct heretofore defined or known as common law larceny by trespassory taking, common law larceny by trick, embezzlement, or obtaining property by false pretenses;

      -by acquiring lost property;

      -by committing the crime of issuing a bad check;

      -by false promise;

      -by extortion[4]

 c. Investigation Tips

It is recommended to review income tax returns, banking statements, check registers, public records for deed changes, financial institution records and beneficiary forms.

d. Adult Protective Services (APS) Investigations

Adult Protective Services (APS) accepts all referrals to adults, over the age of 18 years, who are alleged to be incapable of caring for themselves because of a physical or mental incapacity and/or abused, neglected or financially exploited by others; and have no one willing or able to assist them responsibly. Services may be provided free, without regard to income. A caseworker will visit the person in his/her home within 24 hours if the allegation is life threatening; and within 3 working days, if non-life threatening. It uses a case management approach to evaluate eligibility for homemakers, counseling, financial management services, and medical services. Anyone making a referral to Adult Protection Services in good faith is protected from civil liability.[5]

 e. Suing a Family Member, Caretaker, Power of Attorney or Trusted Other

 Surrogates Court

Discovery Proceeding:  Under New York Surrogate's Court Procedure Act (SCPA) §2103, it is a proceeding by fiduciary to discover property withheld or obtain information. Proceeding may be instituted against any person having possession or control or knowledge or information about money or other personal property or the proceeds or value thereof to which the fiduciary is entitled.[6] Cases expanding jurisdiction of Surrogate's Court:  Claims based upon misappropriation, fraud or undue influence[7]; life insurance proceeds[8]; and interests in real property or rents[9]; claims sounding in breach of contract[10] All types of bank accounts are subject to discovery.[11] Jurisdiction in Surrogate's Court expanded by case law and legislation to cover almost all "actions and proceedings relating to the affairs of decedents".[12] Burden of proof is upon petitioner when respondent in effect interposes a general denial that he has any property which should be delivered to the fiduciary.[13] Burden of proof is upon respondent when respondent alleges he received property from decedent by gift.[14] Respondent must establish every element of a valid gift by clear and convincing proof.[15] Burden of going forward shifts to the respondent should petitioner establish a confidential relationship in which the decedent relied upon the respondent.[16]

Turnover Proceeding:  SCPA §2105 governs proceeding to compel delivery of property by a fiduciary which is aimed by another or others. Proceeding is commonly referred to as a reverse discovery. Turnover proceeding brought generally for joint bank accounts, totten trust accounts and other property which passes by operation of law, however, such property remains in the fiduciary's possession.[17]

Banking Law Claim: Bring proceeding for bank accounts under New York Banking Law §675.  The opening of a joint bank account in proper statutory form is prima facie evidence of title in the survivor, and the burden of proof in refuting such prima facie evidence is upon the one challenging the title of the survivor. Statutory presumption arises by words of survivorship appearing on signature card and the title of the passbook is not controlling.[18] Prima facie cases usually attempted to be rebutted by establishing the account was really a "convenience account" or that it was opened as a result of undue influence, fraud or lack of capacity.[19]

Supreme Court:

Ordinary Summons/Complaint for deed/gift set aside action, conversion, fraud, breach of fiduciary duty or other civil actions.

Criminal Court:

Contact local District Attorney office for criminal action.



[1] Rounds, 853 T.M., Fiduciary Liability of Trustees and Personal Representatives

[2] Rounds, 853 T.M., Fiduciary Liability of Trustees and Personal Representatives

[3] Rounds, 853 T.M., Fiduciary Liability of Trustees and Personal Representatives

[4] New York Penal Code §155.05


[6] SCPA §2103(1)

[7] Matter v. Finkle, 90 Misc 2d 550, affd. 59 A.D. 2d 862 (1977); Matter of Reiner, 86 Misc 2d 511 (1977); Matter of Friedman, 64 A.D. 2d 70 (1977).

[8] Matter of London, 90 Misc 2d 351 (1977), Matter of Robles, 72 Misc 2d 554 (1977).

[9] Matter of Rungo, 74 Misc 2d 239 (1973), Matter of Hall, 54 Misc 2d 923 (1969).

[10] Matter of Young, 80 Misc 2d 937 (1975), Matter of Goldstein, 79 Misc 2d 4 (1974).

[11] SCPA §2103(2)

[12] Matter of Piccione, 57 N.Y. 2d 278 (1982), Matter of Hoffman, 275 A.D. 2d 372 (2000).

[13] Matter of Robinowitz, 5 Misc 2d 803 (1957), Matter of Beyer, 3 Misc 2d 819 (1956).

[14] Matter of Van Alstyne, 207 NY 298 *1913), Gruen v. Gruen, 68 N.Y. 2d 48, Matter of Ferrara, N.Y.S.2d 2005 WL 2542627 (N.Y.A.D. 2Dept.), 2005 N.Y. Slip Op. 07531.

[15] Matter of Kennedy, 36 AD 2d 549 (1968), Matter of Kaminsky, 17 AD 2d 690 (1962), Estate of Left, 44 N.Y. 2d 915 (1978).

[16] Gordon v. Bialystoker Center & Bikur Cholim, Inc., 45 NY2d 692.

[17] Matter of Nova, 23 AD2d 820.

[18] Matter of Fenelon, 262 NY 308 (1933), Matter of Coon, 148 A.D. 2d 906 (1989)

[19] Stalter v. Stalter, 270 A.D. 2d 594, Matter of Creekmore, 1 NY 2d 284.

  Circular 230 Disclosure: 

*** The Treasury Department has newly promulgated Regulations effective June 20, 2005, that applies to those attorneys and accountants (and others) practicing before the IRS that require such individuals to provide extensive disclosure in certain written communications to clients.  In order to comply with our obligations under these Regulations, we want to inform you that since this communication is not intended to and does not contain such disclosure, you may not rely on any tax advice contained in this document to avoid tax penalties.


Tags: Estate Law, Medicaid And Assets, Estate Planning, Advanced Elder Law, Elder Law