COMMONWEALTH OF MASSACHUSETTS
BERKSHIRE, SS BERKSHIRE PROBATE COURT
DOCKET NO. AB12C34D5
IN THE MATTER OF:
JOHN Q. SMITH OF ANYTOWN, MA
AFFIDAVIT OF OBJECTIONS ON BEHALF OF OBJECTOR JANE SMITH, TO THE AMENDED 14TH-16TH AND 17TH THROUGH 26TH AND FINAL ACCOUNT OF CONSERVATOR, ROBERT JONES.
Now comes Objector Jane Smith, interested party and decedent's only child, through counsel, who makes the following objections to the Amended 14th - 16th and 17th through 26th and Final Account of Conservator, Attorney Robert Jones, in the above-captioned matter.
- Accounts were not filed timely. The Conservator neglected to file the Amended 14th - 16th accounts, as well as the 17th, 18th, 19th 20th, 21st, 22nd, 23rd, 24th, 25th, and the 26th and Final Account, timely. All of the above referenced accounts were just recently filed with the Court on February 22nd 2019. Per MGL Chapter 190b section 5-418, "Each conservator shall account to the court for administration of the trust not less than annually unless the court directs otherwise..."
- In addition to the overall lateness of all of the accounts, the time delay of the 26th and Final Account (which should have been filed no later than March 23rd 2018) was detrimental to the Objector and the financial accuracy of this accounting. Per MGL Chapter 190b section 5-418, the Conservator is to file the Final Account within 60 days of the death of the protected person, in this case John Q. Smith.
- Inconsistency in the accountings. The accountings provided are insufficient and inaccurate. As written in the specific objections below, the Objector has sound reason for concern based on several figures that do not add up.
- Questionable line items on the accountings. In the accountings submitted there are questionable line items that require clarification, involving both fees charged the protected person as well as disbursements made from protected person's funds.
- Conservator knew of the protected person's only living issue, his adult daughter Jane Smith. Conservator (and friend) of the protected person, Mr. Smith, not only breached the duties he obligated himself to in accepting his position as Conservator, but went further by entering misleading information on the 26th and Final Accounting.
- The 14th Account was for the accounting period of 11/01/1998 through 10/31/2002, and the 14th Account (Amended) was not filed with this Honorable Court until February 22nd 2019. The 15th Account was for the accounting period of 11/02/2002 through 10/31/2003, and the 15th Account (Amended) was not filed with this Honorable Court until February 22nd 2019. The 16th Account was for the accounting period of 11/01/2003 through 10/31/2008, and the 16th Account (Amended) was not filed with this Honorable Court until February 22nd 2019.
- On October 14h 2009, Guardian Ad Litem, Attorney James White, filed his report on Accounts 14 through 16 and did not approve the accounts, but recommended the Court instruct they be amended. It took from 2009 until 2019, ten (10) years, for the aforementioned accounts to be amended, keeping in mind these three accounts were for the accounting period ranging from 1998 - 2002. Therefore the 14th, 15th, and 16th Accounts (Amended) that were just filed this past February (2019) are reflecting the financial activities of the Conservator, from 21 through 11 years ago. This is certainly unacceptable.
In addition, the 17th through the 26th and Final Account were all filed at one time, again, in February 2019, after the death of the protected person, John Q. Smith. So essentially for the past 11 years, prior to these recent submissions of February of 2019, there had been no accountings available for the Court, interested parties, or the protected person himself. For the 21 years prior to that, only three accountings were submitted covering 21 years ago through 11 years ago, that were objected to by the GAL and ordered to be amended by the Court. Again, this lapse i reporting is found unacceptable.
Seeing as February 22nd 2019 was the first time Accounts 17 through 25 had been submitted to this Honorable Court, and the 26th and Final Account was also filed on February 22nd 2019, covering the period from 11/01/2017 through 1/23/2018 (Protected Person John Q. Smith's date of death). It is clear the Conservator completely disregarded the law and submitted accountings for the past 11 years, and amended accounts for years 21-11, all at one time, without any regard for timeliness or interested parties.
3. The Final Account was not filed until 1 year and 29 days after the death of Mr. Smith, with the date of the accounting period listed on the Final Accounting being the Date of Death (01/23/2018) of Mr. Smith. Not only does this late submission go against the lawful duties of the Conservator, but problematic for interested parties, such as his only living issue Jane Smith, as she was not properly or timely notified nor kept informed. In addition, this untimely filing brings about an arguably larger issue, which is that the Final Account is no longer accurate or acceptable. While the end of the accounting period is the date of death, the Conservator, by not filing the Final account with the 60 days, allowed so much time to pass that figure altering factors and actions have occurred.
As referenced above the Conservator filed the 26th and Final accounting in February of 2019 for time period starting November 1st 2017 through January 23rd (the date of Mr. Smith's date of death). As referenced above, this is well over the 60 days provided by law. Unfortunately, in doing so, it has caused the final accounting to be inaccurate. Currently in the final accounting before the court, Schedule B shows a total of $465,207.60 , as figure that was then paid to the Personal Representative (also Attorney Robert Jones) to be put in the Estate Account, giving Schedule C the $0 balance documented. However, this amount was the amount in the Conservator's control as of the date of death, over a year ago, not to-date.
While the Objector is unaware of the exact amounts currently in the accounts of her deceased father, she was able, through counsel, to know that it is not the amount reflected in the Final Account submitted by the Conservator. Counsel, by pulling the file and reviewing the Docket, was able to see that when the Conservator had filed a General Petition for Probate (that he later voluntarily withdrew) dated October 3, 2018, he listed the current balances of the accounts. in said petition, the Petitioner, Attorney Jones, stated, "...there presently remains two accounts - Merrill Lynch $386,300.81 and TD North Bank $71,945.27 as of the last reports and August 31st 2018. The probate assets after expenses will be paid to Solder On, Dorothy XXXX, and Patricia XXXXX...".
This amount in the two accounts combined equaled $458,246.08 as of August 2018. If you go by the Final Account submitted to the Court $465,207.60 is the final amount that was to be paid over to the Estate Account. This is a difference of $6,916.52, almost $7,000.00. Where did this $7000 go between January 2018 and August 2018? Objector does not know, seeing as the Final account was not filed properly, nor timely, and as a result, activities of some sort have taken place after the final accounting period. Objector does not under what authority any money was spent, and who spent it.
It has now been 7 months since the last known balance. If the Conservator had properly and timely filed a Final account with the court within 60 days of Mr Smith's death, we of course would not be in this situation, wondering what happened to missing funds and not knowing the balances of these accounts.
4. The 14th, 15th, and 16 Accounts were originally filed in 2009 and covered the years of 1998-2008. These are the accounts that the previous referenced Guardian Ad Litem Attorney James White objected to, stating, "...after reviewing all three accounts the Guardian Ad Litem had difficulty reconciling the schedules and took issue with the manner in which the accounts were presented". The Objector would ask that the Court take note that the figures on all three original accounts varied greatly from the amended accounts; this is cause for deep concern. Please see below:
2014 Account (Original) 2014 Account (Amended)
Schedule A - $422,378.20 Schedule A - $487,271.98
Schedule B - $90,957.50 Schedule B - $158,130.50
Schedule C - $331,420.70 Schedule C - $329,141.48
2015 Account (Original) 2015 Account (Amended)
Schedule A - $382,655.88 Schedule A - $403,515.88
Schedule B - $27,054.88 Schedule B - $45,242.00
Schedule C - $355,601.88 Schedule C - $358,273.88
2016 Account (Original) 2016 Account (Amended)
Schedule A - $488,686.18 Schedule A - $553,459.94
Schedule B - $131,119.03 Schedule B - $194,089.79
Schedule C - $357,567.15 Schedule C - $359,370.15
How could there be that much of a discrepancy between the original accounts and the amended accounts without raising questions....these are huge discrepancies.
5. Fees were received by Conservator/Attorney Jones and it is unclear if these fees were for work performed as Conservator, Personal Representative, and/or Attorney. Some of the years there were no funds given to Mr. Smith, and little, if any, movement of his other funds, so what the fees were for, is unknown. The fees for Jones and Mansfield in the accountings are as follows:
14th Account - fees $17,360.00
15th Account - fees $3,200.00
16th Account - fees $16,000.00
17th Account - fees $14,700.00
18th Account - fees $4,500.00
19th Account - fees $3,200.00
20th Account - fees $3,200.00
21st Account - fees $3,200.00
22nd Account - fees $3,200.00
23rd Account - fees $4,000.00
24th Account - fees $5,000.00
25th Account - fees $5,500.00
In summary, there is no reason or explanation/or invoice given, there vary greatly and it is unknown what these fees are actually for.
6. There are questions surrounding the accuracy of some of the line items, as some years the protected person was given thousands of dollars, and other years it shows the protected person not receiving one penny from the funds the conservator was holding/managing for Mr. Smith. It was recently brought to light that Mr. Smith had a Rep Payee. Attorney/Conservator Jones stated that at one point he was the Rep Payee. This just seems to complicate things further. If Mr. Smith had a Rep Payee what are the large amounts given to him for? Where is the proof it was actually given to Mr. Smith? There are no dates listed and no other information available.
7. Attorney Robert Jones was Mr. Smith's Conservator (appointed by the Court) and friend (as referenced in Mr. Smith's last Will and Testament, drafted in 2009). Mr Smith's only living child, is an interested party, and should have been acknowledged, by being served copies of the original petition, being served all of the prior accountings, should have received disbursements from Mr. Smith's funds towards his child support obligation/arrearage, and should not have been inadvertently/haphazardly left out of Mr. Smith's will and then simply disregarded. Mr. Smith had schizo-effective disorder a very serious mental illness, and his Conservator/Attorney and Friend Robert Jones did not protect or look out for Mr. Smith's financial affairs as he should have. In addition, he seemingly kept it all private, by not filing accountings or notifying Mr. Smith's only living issue, Jane Smith.
8. Interested party, and sole living heir, Jane Smith, has without question been harmed by the accountings, actions and inactions of the conservator. With all of these questions, insufficiencies, and neglectful behavior, it could be quite costly and time-consuming for all of these accountings to be amended, and for an investigation to take place into the accounting and behavior of the parties involved. Objector, Jane Smith, is concerned that much of the funds that belonged to her father would be absorbed in and through costs and fees. That is why, the objector, Jane Smith is simply proposing that this honorable Court order $130,000.00 to be dispersed from the decedent's funds prior to the remaining funds being transferred to the estate account. $30,000 for unpaid child support and interest (as the protected person her father, never paid one cent, although court ordered to do so). In addition, objector Jane Smith thinks it fair and reasonable that $100,000 be dispersed to her as the sole heir and proper recipient of the protected persons bounty, as referenced above. The objector would hope the court would recognize that while conceivably she is within her right to petition for the protected persons entire estate, she does believe that Dorothy XX, if still living, Patricia XXX (the protected person's sister), and Soldier on, should also receive something in part. The objector was raised by her mother with no assistance, financial or otherwise, from her father Mr. Smith, and she does not want to be forgotten, or ignored, which is presumably what has happened throughout this entire conservatorship, and now estate process. Nor should she be responsible for the costs, fees, and time involved, simply because she is not at fault, and had she been kept aware of the accounts or acknowledged by those other than Mrs. XXX and Miss XX, we would not have the issues that are currently before this honorable Court.
Alexander F.X. Matulewicz, Esq.
(ALL NAMES HAVE BEEN CHANGED FOR PRIVACY REASONS)