By Tim Wheat
First, this trial has gone on since 2005 and began in Boulder. The whole story is fascinating and very scary. I only have my notes here from the Colorado Court of Appeals, Tuesday, January 25, 2011.
The Colorado State Bank and Trust was made conservator of Matt Keenan and sued in opposition to his decision when Mr. Keenan asked for another conservator. Matt Keenan did something the Colorado conservator regulations did not take into account: He got better. Matt wanted his life back, but the bank resisted giving him any authority and they ruthlessly sued Matt with his own trust account money to continue to administer his trust. Today the case has seeped its way up to the Colorado Court of Appeals.
Skip Morgan, Matt’s attorney since 2007 was first. Mr. Morgan gave a brief overview and stated that Matt no longer needs a conservator and asked the court “to what extent can a bank block a person’s rights?”
Mr. Morgan said further that the lower court had erred in its finding of a “good faith” on the bank’s behalf. Very clearly he said “when you litigate against a client, it is wrong.” Matt’s attorney argued that it is a breach of the bank’s fiduciary duty and the general concept of “acting in the client’s best interest.” Obviously the judgment of what is in the best interest must come from the client’s perspective, and not be the whim of a banker. The law clearly states that the needs and desires of the individual are the first consideration and Skip Morgan offered that the only time the client’s directive could reasonably be ignored was when there was some obvious or imminent danger.
Not only did the bank fail to show why Matt Keenan’s direction was in anyway harmful, but the bank could not show any benefit to Matt by their conservatorship. The cost to Matt of their service has been about $300,000.00.
Mr. Morgan finished his presentation by stating that this has been a violation of Mr. Keenan’s civil rights as well. The bank ignored the needs and desires of Matt and therefore clearly failed to provide their services in the least restrictive method. By using Matt Keenan’s time and resources to vindicate their banking and accounting practices they have not served Matt responsibly. People with disabilities generally are to have equal protection and not treated as “cash cows” for the banking industry.
The Colorado State Bank and Trust then attempted to make their case around the theory that the bank’s determination of “in the best interest of the client,” was an unquestioned complete authority granted over Matt Keenan’s life. The bank’s attorney argued that the “benefit” to Matt was the continuation of the conservatorship itself. Judge Jones, one of three judges interrupted to clarify that the bank had opposed Matt removing Colorado Bank and Trust as conservator, not just continuation of conservatorship.
The bank abandoned the contention that Matt benefited and at this point argued that the bank had a right to defend its service at Matt’s expense. The attorney explained that Matt had questioned the bank’s competence and therefore the bank properly acted to defend itself rather than pass the job on to some other conservator.
Judge Dennis Graham inquired if the lawsuit itself does not raise some “adult supervision” and point to some other method of resolution. “How would you say fiduciary responsibility” he asked, “was not breached?”
The bank’s attorney said it was their contention all along that the litigation was exacerbated by Matt. Of course, they say “exacerbated” because the bank is in control. The bank clearly could have stopped anytime and it is disingenuous to blame Mr. Keenan for the years of litigation when the very nature of the case is that the bank is in charge, and they sue to remain in power.
Judge John Webb asked if Colorado Bank and Trust had spent $198,000.00 of Matt’s money to justify their own accounting practices. The bank responded that the lower court did not find any impropriety; however, the bank had just argued to the Appellant Court that the “benefit” had been continued conservatorship at the same time they said the bank had a right to defend their accounting. It was clear to me the bank was saying two different things and the real purpose was clearly to profit from Matt rather than act reasonably in their client’s interest.
The final issue was a question by John Webb. He asked about $1,900.00 that had been used by the bank. The bank said the money was necessary to keep Matt eligible for Medicaid and the bank had acted to keep Matt eligible.
In rebuttal, Skip Morgan quickly explained that the bank had mismanaged the funds and violated the Medicaid Trust Account regulations. The $1,900 belongs to Matt. In conclusion Mr. Morgan made a simple appeal to the court for veterans who may return with Traumatic Brain Injury and other Coloradoans who may hopefully look to regain their independence and benefit from the system that respects their decisions.