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Law Pro
Law Pro, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 24869
Experience:  20 years trial experience in defense of criminal cases
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One attorney told me that filing criminal charges against my

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One attorney told me that filing criminal charges against my brother would be a colossal waste of time, that the DA already has so many big cases on it's ledger that my case against my brother will probably never even be heard. Even if that's true, would it be wise to at least make formal complaints to the police and the DA about our brother's malfeasance, just to cover ourselves in future issues with him?

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I have to review our past conversations to better give you an answer. But that statement by the other attorney certainly would appear to be a little "jaundiced" in perspective?
If your brother has wrongfully stolen monies from your mother or taken monies when a conservator has been appointed is clearly wrongly illegal.

When a conservator has been appointed - they are appointed by a judge to protect and manage the financial affairs and/or the person's daily life due to physical or mental limitations or old age. The conservator may be only of the "estate" (meaning financial affairs), but may be also of the "person," when he/she takes charge of overseeing the daily activities, such as health care or living arrangements of the conservatee.

Once the conservator is appointed - your brother doesn't have any legal powers or authority over her assets. If he does anything involving such without the consent of the conservator who should be presenting a motion to the court for their consent.

So, if your brother isn't getting the approval and and consent of the conservator and court - that's wrongful conduct.
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Customer: replied 3 years ago.

Thank you for your answer, Fred. As always, very helpful. But my question was pertaining to actually filing our case with the DA. One attorney told me that it would be essentially a waste of time, but I feel that anything that we can bring against our brother, whether the DA accepts the case or not, will help us build a case against him in the future. Would you recommend that we make a formal complaint with the Sheriff's department in our jurisdiction then file with the DA's office as I have read on the Internet, or simply drop our entire case? Also—do you think that our conservator (whom we are paying a lot of money) be made responsible for this hidden transaction, and that we might even think of firing her and replacing her with someone better?? Thanks.

Go right to the DA's office and file a criminal complaint. Take with you a copy of the court order as to the designation/appointment of a conservator. Take with you any documentation or evidence of his wrongful conduct after that date.

The DA will pursue such - at a minimum - they will get him to return the monies and not charge him criminally.
Customer: replied 3 years ago.

On the subject of conservatorship, Fred, I think that our court-appointed conservator is a total joke. She rarely returns our phone calls or emails, and has failed on every occasion to prevent our brother from pillaging what remains of our family inheritance.

Question One: Should we try to fire her and replace her with someone better equipped to handle our problems? And, can we even hold HER responsible for allowing this SECOND theft by our brother (apparently,

he has stolen $200,000. before, using this same HELOC mortgage loan deal). She's been charging us by the hour for years, yet has apparently done NOTHING to prevent these unauthorized thefts!

Oh, yes. If the conservator isn't performing their due diligence and you can point to any negligence on their part. Not only will the judge remove them but they may be liable for their inaction too.

Malfeasance is a comprehensive term used in both civil and Criminal Law to describe any act that is wrongful. It is not a distinct crime or tort, but may be used generally to describe any act that is criminal or that is wrongful and gives rise to, or somehow contributes to, the injury of another person.


Malfeasance is an affirmative act that is illegal or wrongful. In tort law it is distinct from misfeasance, which is an act that is not illegal but is improperly performed. It is also distinct from Nonfeasance, which is a failure to act that results in injury.


The distinctions between malfeasance, misfeasance, and nonfeasance have little effect on tort law. Whether a claim of injury is for one or the other, the plaintiff must prove that the defendant owed a duty of care, that the duty was breached in some way, and that the breach caused injury to the plaintiff.

I think that given the facts you stated - you could have a review by the judge of the conservator's inactions and negligence and have them removed. Whether there is a negligence claim where you could pursue their malpractice insurance may be an issue. If they didn't act when they knew they should have - they very well may be liable.

As stated as to the duties of a conservator:

You have a fiduciary duty to the protected person, meaning that you must always act in the best interest of and with undivided loyalty to the protected person, avoid transactions that cause a conflict of interest, and administer the conservatorship estate with care and prudence.
You must always act in the best interest of the protected person. You should not enter into transactions in which you will benefit at the expense of the protected person. In some instances, you may need to get the approval of the Court before finalizing any transactions.
You must keep the conservatorship estate separate from your own assets, and the assets must be readily indefinable.
You must manage the conservatorship estate as a prudent person would in similar circumstances. You are ultimately accountable and may employ the use of professionals and other agents in order to carry out your duties, unless otherwise specified by the Court,
The Court may require you to obtain a type of insurance policy called a “fiduciary bond.” The bond assures that the protected person’s assets are protected in the event that you fail to carry out your duties and there is a loss to the conservatorship estate. If a bond is required, it is generally paid for with the protected person’s funds.
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Customer: replied 3 years ago.

Here's the BIG question, Fred.

Our attorneys are bleeding us dry, not helping us at all. Is there any way to make our older sister both conservator of Mother's finances AND Conservator of the Person? Would it be difficult to oust our court-appointed conservator, and approx. how much would it cost? We're getting killed by legal fees... it will be doubtful if anything in our inheritance is left after all these abuses.

Just left you a little bonus... not much but we're cash strapped!

I would think it might not cost anything if you can present a motion to the court to do such. I would think that the conservator may consent to such given they aren't doing anything now.

At most $500 to file the motion and get before the judge. It' a simple motion to substitute "X" (your sister) for "Y" the conservator.

Basically you state:

The conservator was appointed by the court on _______

The heirs and beneficiaries beleive that ______ would better serve the interests of the _______ (your mother).

The heirs and beneficiaries believe that the cost of the conservator is beyond the means of the estate of _______(your mother).

That if the appointed conservator continues in this role there will be nothing left for the heirs and beneficiaries.

Wherefore, the heirs and beneficiaries request that ____ be substituted conservator in the estate of _________________
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