Saturday, June 04, 2005

More on Joan Versus the Kiddies

Over the weekend, the Boston Globe reported the latest in the Joan Kennedy guardianship matter. Excerps here:

"When the legal efforts first began last year, Joan Bennett Kennedy wholly endorsed a move by her three children to give her son Edward M. Jr. temporary control over routine medical decisions and authority over her estimated $9.5 million in assets.

'I do not object to the appointment without prejudice of Edward M. Kennedy Jr. as my temporary guardian,' she wrote in a court filing on July 9, 2004.

But since then, relations have soured between Kennedy and her children, and a court battle largely fought behind closed doors is now expected to spill into public view on June 13 in Barnstable Probate and Family Court.

Kennedy's three children, led by Edward Jr., plan to ask a judge to name a permanent guardian who would have the final say on medical and financial matters.

'I oppose my children's petition,' Joan Bennett Kennedy said in a recent court filing.
Court papers released yesterday at the request of The Boston Globe show that Edward Kennedy Jr. was named his mother's temporary guardian for the first time on July 12, 2004, after the children convinced Probate and Family Court Judge Robert E. Terry that Joan Bennett Kennedy was 'mentally ill.'

'Ward [Joan Kennedy] is unable to properly care for her person and estate,' Terry found. She is 'incapable of taking care of herself by reason of mental illness,' he found.

The specific illness was not disclosed in the court papers, which had been impounded by the judge and were released in response to the Globe's motion to have them unsealed. Terry declined to release medical records.

'The ward's medical records and related reports contain sensitive, often detailed information,' Terry wrote. 'Although the ward's struggle with alcoholism has long been public . . . the disclosure of any aforementioned detailed records would not produce any public benefit.'


Terry has extended the temporary guardianship four times since July 2004. The most recent is set to expire July 7.


In court papers, Joan Bennett Kennedy's assets were identified as $8 million in real estate -- the family home on Cape Cod and a Beacon Street condominium -- plus $1.5 million in monetary assets.

But control of the real estate is another issue that mother and children are fighting over. Last fall after Edward M. Kennedy Jr. was given control of his mother's assets, she handed over her real estate and financial assets to Webster Janssen, a second cousin from Connecticut. Janssen has put the Cape Cod home on the market, but legal action by the Kennedy siblings have blocked him from selling it.

In the court papers, the Kennedy siblings said the court should reverse the transfers, a contention that Janssen is challenging before Terry...."

I surmised in an
earlier post that perhaps Joan's transfer of her Squaw Island home had been done after the initial temporary guardianship had expired. Apparently, that was not the case (if the current Globe report is correct), if the guardianships were indeed extended. It is still the case, however, that there was nothing on record in the Registry of Deeds that would give notice to the world about the temporary guardianship; although the transfer from Joan to Janssen may indeed be voidable, even if the Notice of Guardianship was not recorded as it was supposed to be. In any event, it is unlikely that Mr. Janssen could be classified as a bona fide purchaser for value.

Regardless of the lack of record notice, the kiddies have apparently obtained some sort of injunction against a sale -- and that troubles me. In order to obtain injunctive relief against the sale of the property, the children would have to demonstrate that the sale going forward would cause them
irreparable harm. Since the Kennedy children (and Teddy) have a Right of First Refusal on any putative sale, there is no prospect at all that they would be harmed, since they continue to have the right to purchase the property on the same terms and conditions as a putative buyer. Their rights under the original deed from Ted to Joan have not been impaired, and indeed, remain the same.

If they succeed, however, in gaining complete control over their mother's property, they would never have to come up with the money. In fact, a permanent guardianship would (presumably) prevent Joan from executing a will that disposed of the property differently than whatever will was in place before she was adjudicated mentally ill. Hence, all that the guardianship accomplishes is to allow the children to continue to keep the property in the family without having to exercise their obligation to pay their mother for that right. If that is the case, then one must wonder how such a move would not be in conflict with the exercise of their
fiduciary duty to their mother.

Forgive my skepticism, but I don't get a strong sense that fiduciary duty is foremost in their minds.

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