Conseco Ins. Co. v. Clark, 2006 WL 2024401 (M.D.Fla. Jul 17, 2006) (NO. 8:06CV462 T30EAJ)
Exploitation of the elderly is endemic. This case provides a good road map for probate litigators involved in cases where the decedent was victimized by his or her power-of-attorney holder, with the facts coming to light in the context of probate proceedings.
If someone has taken the time to prepare estate planning documents, a power of attorney is usually part of the package. But my sense is that the POA usually doesn’t receive the level of scrutiny is should — especially when it comes to retirees who move to Florida and detach themselves from the web of family and friends that looked after and supported them "back home."
The victim in this case was Anthony Jeski, who was 89 years old when he died in 2005 the resident of a Florida nursing home. Myra Clark acted as Mr. Jeski’s power of attorney from 1997 to 2005. Originally, the sole remainder beneficiary of Mr. Jeski’s seven annuity contracts (paying $342,177.58 at his death), revocable trust, which contained $40,000 at his death, a Prudential insurance contract whose value was unreported, and the heir who would receive title to his $158,000 condominium, was Mr. Jeski’s nephew Joseph Dal Campo. This all changed in 2002, when Ms. Clark used the power of attorney to write Mr. Campo out, and write herself in, as sole beneficiary of all of the annuity contracts, the revocable trust, the insurance policy, and last but not least, quit claim the condo to herself for $11.00. Oh, and guess who was the agent that sold Mr. Jeski his annuity contracts? Ms. Clark’s husband.
Confronted with this set of facts, litigation counsel for Mr. Campo could pursue a number of different strategies. In this case, Mr. Campo pursued the following claims, all of which were essentially "blessed" by the trial court.
- Breach of Fiduciary Duty. Key point here was that the trial court held that Mr. Campo was an "interested person" with respect to his uncle’s power of attorney, and thus Ms. Clark owed him the same fiduciary duties applicable to trustees in Florida.
- Fraud. The trial court dismissed this claim, but hinted strongly that if the plaintiff could allege facts showing he had himself relied upon fraudulent statements made by Ms. Clark, then the claim could proceed.
- Civil Conspiracy. The trial court let this claim proceed. Key point being that Ms. Clark’s husband was thus brought into the case as a named defendant.
- Exploitation of an Elderly Person. The trial court dismissed this claim with instructions to the plaintiff on how to replead the claim, hinting again that the judge was predisposed to let this count proceed. This can be a very powerful weapon, because by statute the successful plaintiff is entitled to treble damages and his attorney’s fees. See Counsel Beware: Considerations Before Implementing Florida’s Civil Theft Statute for a good summary of what trial counsel needs to know with respect to asserting these types of claims.
- Tortious Interference with Expectancy. The trial court let this count proceed with respect to all non-probate assets (i.e., everything except the condo). This is an important weapon to keep handy when most if not all of the key assets in dispute fall outside of the probate court’s jurisdiction.
For an interesting non-Florida case dealing with legal and ethical issues surrounding the drafting of a power of attorney see In re Winthrop, 848 N.E.2d 961 (Ill. 2006), and a related discussion of the case in Helen Gunnarson’s article, POA Perils, 94 Ill. B.J. 403 (2006), in which she concludes as follows:
The complexity of the proceeding does . . . suggest that reinventing the wheel when it comes to drafting powers of attorney may be unwise. Even more important, an attorney would be well advised to exercise extra caution when a third party initiates a request for the attorney to draft an instrument for an elderly person.