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Deeds and Conveyances: Special Rules Regarding Fiduciaries

The rules that govern conveyances by guardians equally apply to those that govern conveyances by conservators. But there is some interesting case law when it comes to conservatorships.

The case of Bradford v. Parker, 327 Mass. 446, 99 N.E.2d 537 (1951) does not resolve the question of whether a person under conservatorship, but who is not mentally ill, can convey property. TheBradford case revolved around whether a person under conservatorship, but not mentally ill, could marry. The court said that she could. The case had nothing to do with the property of the individual, which is the subject matter in a conservatorship which is under the jurisdiction of the court, or even a contract,[1] but rather with the personal circumstances of and relationship into which the ward wished to enter. In distinguishing the situation the court said:

The property rights to support, dower, or to a share in the estate of the deceased spouse [citation omitted] arise automatically from the status [of marriage] and not from any contract, conveyance, or other act of the ward in dealing with his property. A conservator has no power over the person of his ward similar to that possessed by a guardian. (Emphasis added).

Another case, Foss v. Twenty-Five Associates of Roxbury, Inc., 239 Mass. 295, 131 N.E. 798 (1921) seems dispositive. In Foss, where the ward, who was under conservatorship, but not of unsound mind, gave a mortgage, the court also emphasized the distinction between the jurisdiction of the court and the fiduciary over property and the person of the ward:

It is immaterial that the conservator was appointed on the petition of Foss. * * * Nor is it material that Foss was of sound mind when the appointment was made and the conveyance delivered. A conservator may be appointed over the property of any person of advanced age or mental weakness, who is unable properly to care for it himself. (Emphasis added).

It would appear that if a conservatorship is outstanding for any reason then the ward's acts as to his or her property would be at least voidable. It seems that the conclusion is inescapable.

The case of In re Matter of Schenk, 12 Mass.App.Ct. 532, 427 N.E.2d 23 (1981), of course, has nothing to do with the issue at hand concerning the acts of a ward during the course of a conservatorship. Rather, it concerns whether the ward can petition to have the conservator removed if she is mentally competent. Of course the court decided that she could. Until she does, however, it would seem that Foss would apply.

Obviously, the rules concerning the exclusive authority of conservators over the property of their wards during the pendency of the conservatorship grow out of the necessity to have some order over the ward's estate, and not to strip the fiduciary of the authority (and obligation) to supervise the ward's property.

It has been held that in the case of a guardianship (and presumable in the case of a conservatorship[2]) a deed by the ward would be void. Wait v. Maxwell, 22 Mass. (5 Pick. 217 (1827). Also, without making a distinction as to the basis of the petition for a conservatorship G.L.c. 201, §20 states that the "conservator shall have the management of all the estate of the ward . . . including the . . . sale . . . of his property. . . ." Although the statute does not specifically state that this control over the property is to the exclusion of the ward, it would appear that such an inference is warranted, even in the case where the ward's conservatorship is not based upon mental infirmity.

Although there is an obvious distinction between deeds of persons under mental and physical infirmities, the distinction seems to vanish when the party is put under conservatorship, subject to the management by the fiduciary and the supervision of the court.

1 Compare Sullivan v. Lloyd, 221 Mass 108, 108 N.E. 923, cited by Bradford.

2 See Park, Real Estate Law with Forms. §733.