Vol. 73, No. 9, September
2000
Special Focus Issue - Elder Abuse
Remedying Abuse by Finance Agents
by Michele M. Hughes
| Michele M. Hughes, U.W. 1988, is a staff
attorney with the Coalition of Wisconsin Aging Groups, Elder Law Center,
Guardianship Support Center. She provides legal advice, training, and
education to individuals and professionals statewide on guardianship,
protective placement, and advanced directives issues. |
Financial exploitation
of older persons, including the systematic depletion of bank accounts or
other resources for the abuser's benefit, has been tagged the "Crime of
the 90s." 1 The number of
financial exploitation cases will only continue to rise as the
population continues to age. Despite the increase in financial abuse
cases, law enforcement officials remain reluctant to pursue
perpetrators, traditionally viewing the situation as a "family" matter
best resolved by civil litigation. In turn, civil litigators may
hesitate to take on a case in which complex and varied legal remedies
must be pled. The Coalition of Wisconsin Aging Groups' Guardianship
Support Center is concerned with the increase of calls relating to
financial abuse of older persons, as well as the statistical rise in
financial abuse cases in Wisconsin.2
More than 80 percent of victims of abuse by an agent under a durable
power of attorney are victimized by relatives, most of whom are
immediate family members.3 Although
financial elder abuse often is viewed as involving vulnerable victims,
victims of the abuse usually are competent. One national study of abuse
patterns by agents under a durable power of attorney for finances
revealed that 57 percent of the principals were competent when the abuse
occurred. The agents in those cases misappropriated more than half of
the principals' assets in 70 percent of the cases.4 Whether the victim is competent, and whether the
abuser is a family member, it is critical that abusers be vigorously
pursued. Financial abuse is not only immoral, it often is criminal.
This article outlines various remedies that attorneys may use in
pursuing an agent under a power of attorney for finances who has
misappropriated funds or other property from the principal. These legal
actions include an action for breach of the agent's fiduciary duty,
conversion, fraud, undue influence, duress, tortious interference with
an expected inheritance, eviction, an action to void a contract based on
lack of mental capacity to contract, and eviction. Several equitable
remedies may be available to the principal, including an action to
establish a constructive trust, and an action for an accounting. A
statutory remedy to petition the probate court to review the agent's
performance also is available. The article also outlines federal tax
implications and strategies, and explains how the remedy of surcharging
the abusing agent can defray the victim's legal fees in bringing a civil
action against the agent. In addition to the remedies outlined here,
numerous other causes of action may occur to the creative lawyer.5 Attorneys will need to plead multiple causes of
action in most financial exploitation cases. First, however, this
article discusses the nature of the relationship between an agent and
the principal under a durable power of attorney document, and general
construction principles of power of attorney for finances documents.
Nature of the Relationship Between an Agent and Principal
To pursue remedies for an agent's misappropriation or other financial
abuse, it is useful to understand the nature of the relationship created
by a power of attorney for finances document. This relationship is
defined in Wisconsin by both statutory and common law provisions.
Execution of a power of attorney for finances document under Chapter 243 of the
Wisconsin Statutes creates a fiduciary/agency relationship between the
agent and principal.6 The Wisconsin Supreme
Court also has held that an agent under a power of attorney for finances
document, like other agents, is a fiduciary.7 An agent is bound to exercise the utmost good
faith and loyalty toward the principal. The agent's duty is to act
solely for the benefit of the principal in all matters connected with
the agency, even at the expense of the agent's own interests.8
The fact that an individual who executes a power of attorney for
finances document creates an agency relationship with the agent is
important in many respects to lawyers who represent clients who have
been financially exploited by those agents. In briefing issues, a
practitioner may cite case law involving other types of agents with
fiduciary obligations, such as trustees and real estate agents. In
Alexopoulos, Wisconsin's leading decision interpreting a
financial agent's authority under a power of attorney for finances
document, the Wisconsin Supreme Court stated that by analogy the
fiduciary obligation of an agent and a trustee impose similar
duties.9 In addition, selections from the
Restatement (Second) on Trusts and the Restatement (Second) on Agency
will be useful to support attorneys' arguments.
Constructing Power of Attorney Documents
It is widely held that power of attorney documents must be strictly
construed.10 Thus, the documents are held
to grant only those powers that are clearly delineated or
specified.11 Unless the power of attorney
document contains a specific clause allowing the agent to gift the
principal's money to the agent or contains a broad gifting power, the
agent does not have authority to gift to him or herself.12 Furthermore, even if a power of attorney for
finances document contains a broad gifting clause, an agent nonetheless
has a fiduciary duty of loyalty to the principal.13 Where the gifting clause does not specify the
nature and amount of the gifts allowed, the agent nonetheless has a
fiduciary duty to act with the principal's utmost concern in mind, not
the agent's.14 Thus, an agent may not gift
to him or herself or others with impunity. The gifting must be
consistent with the terms and conditions of the gifting clause. Finally,
an argument can be made that an agent who believes he or she is
authorized under the power of attorney for finances document to gift to
him or herself or others has a duty to disclose those gifts and obtain
consent from the principal.15
Certainly, broad gifting powers may be granted to an agent by a
principal. Power of attorney for finances documents are used by
experienced elder law practitioners to effectuate an overall estate plan
for an individual or couple. The document may include provisions to
allow the agent to divest the principal's assets prior to a medical
assistance application. The power of attorney for finances document may
contain a substituted judgment standard clause allowing the agent to
substitute his or her own judgment for the principal's (usually reserved
by elder law practitioners to cases where a married couple are principal
and agent, the couple has been happily married for many years, and trust
one another completely), which even allows the agent to choose a new
agent if he or she becomes unable to serve. These clauses must be
drafted carefully to avoid a later challenge to the agent's gifting
authority.
Petition to Review the Agent's Performance
1998 statutory amendments to Chapter 243 of the
Wisconsin Statutes16 allow any interested
person to petition the probate court for the county where the principal
is present or has legal residence to review whether the agent is
performing his or her duties according to the terms of the durable power
of attorney. This remedy may be particularly useful where minor
infractions of the agent's authority are involved, or where
clarification of an ambiguous term of the power of attorney document
might be helpful. The remedies the court may impose include ordering the
agent to report to the court periodically, ordering the agent to comply
with the terms of the principal's durable power of attorney, or
rescinding the agent's powers. The availability of the remedy may be
useful as leverage to force an agent to give an accounting without
actually having to file the petition for review. The petition also may
be useful where a person may not otherwise have standing to bring other
causes of action, although the statute does not define the term
"interested party." Presumably, an interested person to petition to
review the agent's performance would be the same as an interested person
as defined either in the probate code or guardianship statutes.17
Where the agent is significantly depleting the principal's assets, a
petition for review of the agent's performance, standing alone, may not
be the most appropriate action, unless combined with additional causes
of action for return of the individual's assets (such as an action for
conversion or breach of fiduciary duty) and a temporary injunction.
Although one of the available remedies is for the court to rescind all
powers of the agent to act under the durable power of attorney, in most
cases the principal instead will want to immediately revoke the power of
attorney document and not wait for a possibly cumbersome court
procedure.
Although the statute allows a principal to revoke a Wisconsin Basic
Power of Attorney document by destroying the document, directing another
person to destroy it in the principal's presence, or by signing a
written and dated statement expressing the principal's intent to
revoke,18 the best practice in a case where
the agent is in a position to further deplete resources is to serve a
notice of revocation on the agent (personally or by mail with return
receipt requested) to provide proof that the power has been revoked and
the agent notified. If the principal's competence is in question, a
conservator,19 or temporary
guardian,20 should be appointed and
authorized to revoke the power of attorney document.21 However, before the agent is served with
notice of revocation, all asset holders should be notified of the
revocation, and directed not to dispense any more assets to the former
agent. Failure to do so will put your client at risk of having all of
his or her assets depleted. Additionally, closing bank or other
accounts for which the agent has check writing authority, canceling
credit cards, and removing the contents of safety deposit boxes should
be considered as immediate first steps.
This notice also is crucial because under the common law of agency,
third parties may rely on, and the principal will be bound by, the
apparent authority of the agent, where the third party has not received
notice of the termination of the agent's authority.22 The Notice of Revocation also should be filed
with the Secretary of State's Office and the Register of Deeds in any
county where the principal owns real estate.
Breach of Fiduciary Duty
Because an agent owes a fiduciary duty to the principal, a cause of
action for breach of that fiduciary duty may redress a variety of
aberrant conduct by an agent. An agent is required to act for the
advancement of the interests of the principal. The agent may not serve
or acquire any private interest of his or her own that is adverse to the
interests of the principal without the principal's consent.23 Agents, as fiduciaries, are required to make
full disclosure to their principals of all information material to a
transaction.24 A cause of action for an
agent's breach of a fiduciary duty is a tort.25 A fiduciary is liable for damages in the event
of a breach.26 All of the traditional tort
damages are available, including punitive damages where conduct is
wanton or willful, or in reckless disregard of rights or
interests.27
Conversion
Conversion is "[a]ny distinct act of dominion wrongfully exerted over
another's personal property in denial of or inconsistent with his rights
therein, such as a tortious taking of another's chattels, or any
wrongful exercise or assumption of authority, personally or by
procurement, over another's goods, depriving him of the possession,
permanently or for an indefinite time."28 A
conversion action is a tort.29 The leading
case in Wisconsin on the issue of a power of attorney for finances
absconding with funds of a principal was brought as a conversion action
in Alexopoulos. In Alexopoulos, the Wisconsin Supreme Court held that
the agent was liable for conversion by failing to account for the
principal's funds. Importantly, the court also readily discounted as
"bizarre" the defendant's argument that general language in the power of
attorney document authorizing the agent to dispose of the principal's
money in the same manner that the principal could do personally was
tantamount to a gift.30
The principles of Alexopoulos were reaffirmed in an attorney
disciplinary action. An attorney/executor sold a house to his wife
without first notifying heirs in contravention of state statute. The
court stated that "a general authority to deal with assets or to sell is
not sufficient to exculpate an executor of an estate from a charge of
self-dealing, and, in the case of an attorney, from a charge of
professional misconduct." 31 The court held
that where the agent is alleging that any of the powers granted are to
be exercised for the benefit of the fiduciary rather than the principal,
specific authorization must be shown.
Fraud or Misrepresentation
Fraud is "[a] generic and an ambiguous term"32 and includes misrepresentation. No Wisconsin
cases have addressed fraud as a cause of action when an agent under a
power of attorney document has financially abused the principal.
However, such an action was successful in both West Virginia33 and Nebraska.34 In
the West Virginia case, a bank, as executor of an estate, filed a
declaratory judgment action to determine ownership of funds in two joint
bank accounts that had rights of survivorship. The trial court ruled
that the funds were owned by the defendant, the decedent's
brother-in-law, as the joint tenant and survivor. Four nieces, who were
to take under the decedent's will, appealed. They argued that the
decedent and the defendant had a confidential relationship, since the
defendant was the decedent's agent under a power of attorney for
finances. They argued that a confidential relationship creates a
presumption of fraud where a fiduciary is shown to have obtained any
benefit from the fiduciary relationship. The Virginia Supreme Court of
Appeals agreed with the nieces, holding that since the defendant had
failed to explain the necessity for placing proceeds of a sale of
Treasury bills worth $30,000 in the joint savings account or to show
whether the decedent had even been aware of, much less sanctioned this
action, he failed to meet his burden of proving that the funds were a
bona fide gift.
In the Nebraska case, an agent/attorney was found to have
fraudulently converted and gifted $500,000 of his principal's money to
himself.35 The court held that although
generally a plaintiff retains the burden of establishing fraud,
nevertheless a fiduciary relationship may be sufficient to find fraud
existed when in the absence of such a status it could not be so found.
The effect thus places the burden of going forward with the evidence
upon the party charged with fraud.
In Wisconsin, fraud "embranches [sic]" misrepresentation.36 A claim for misrepresentation is a tort. An
agent may make statements to the principal, knowing those statements to
be untrue, to induce the principal to take a certain action for the
benefit of the agent only. When the principal suffers financial harm in
relying on the false statements, a cause of action for intentional
misrepresentation might lie.37 For example,
an agent, the principal's nephew, convinces the principal to sell him
the principal's home at substantially less than fair market value. In
turn, the nephew represents that he will care for his elderly uncle for
the rest of his life in the home. The agent, in fact, has no intention
of caring for his uncle, and the uncle must be admitted to a nursing
home shortly after his nephew moves into his home. An action for
intentional misrepresentation likely would lie in this situation.
To state a claim for intentional misrepresentation, a plaintiff must
allege that: 1) the defendant made a factual representation; 2) the
representation was untrue; 3) the defendant either made the
representation knowing it was untrue or made it recklessly without
caring whether it was true or false; 4) the defendant made the
representation with intent to defraud and to induce another to act upon
it; and 5) the plaintiff believed the statement to be true and relied on
it to his or her detriment.38 It is
possible to argue a claim based on intentional misrepresentation by
alleging the agent failed to disclose information relevant to the
transaction. If there is a duty to disclose a fact, the law treats
failure to disclose that fact as equivalent to a representation of the
nonexistence of the fact.39 In this
situation, case law holding that an agent has a fiduciary duty to fully
disclose all relevant information to the principal can be used to meet
this standard.40
Undue Influence The basic question in undue influence is whether the
free agency of the subject individual has been destroyed.41 Undue influence is considered a species of
fraud.42 Most Wisconsin cases on the issue
of undue influence involve contests to an individual's will. However,
undue influence in the execution of an inter vivos conveyance is proved
in the same way that undue influence is proved in the execution of a
will.43
Two tests have evolved to prove undue influence, sometimes referred
to as the "four-prong" and "two-prong" tests, either of which can be met
to prevail.44 Elements of the four-prong
test include: 1) susceptibility to undue influence; 2) opportunity to
influence; 3) disposition to influence; and 4) coveted result.45 To meet the two-prong test one must establish
the existence of: 1) a confidential or fiduciary relationship between
the testator and the favored beneficiary; and 2) suspicious
circumstances surrounding the making of the will (or other
transaction.)46 Once the objector proves
the existence of both elements by the requisite proof, a presumption of
undue influence is raised, which then must be rebutted by the
proponent.47 Importantly, when an agent
under a power of attorney for finances document is the perpetrator of
the undue influence, the first part of the two-prong test is established
automatically. This is because a fiduciary relationship between the
principal and agent is established as a matter of law when a person
executes a power of attorney for finances.48 Thus, if suspicious circumstances exist in
creation of the will, conveyance, and so on, the burden is shifted to
the perpetrator/agent to prove that he or she did not unduly influence
the principal/victim.
Duress
Duress, in its broadest sense, includes instances where a condition
of mind, caused by fear of personal injury or loss of limb or injury, is
produced by the wrongful conduct of another, rendering the principal
incompetent to contract with the exercise of his or her free will
power.49 There must be a full and free
consent by the parties to the terms of a contract. Duress involves
"[w]rongful acts ... that compel a person to manifest apparent assent to
a transaction without his volition or cause such fear as to preclude him
from exercising free will and judgment in entering into a
transaction."50
A claim for duress may be available in two situations: 1) as an
affirmative defense or action to void a contract; or 2) as an
intentional tort. Few cases have been brought under a theory of duress
in Wisconsin, perhaps because the claim is so similar to undue
influence, which is easier to prove. Despite the dearth in recent case
law, a claim for duress should be considered whenever the agent has used
force or threat of force to cause the principal to suffer financial loss
to the benefit of the agent. A claim for duress may be appropriate when
the principal has, for example, changed his or her beneficiary on a life
insurance policy at the agent's request, if threat of force or veiled
threats are involved.51 Where the principal
has been coerced into changing title to his or her home or other
property, a claim for duress also may be used to void the
transaction.52
Tortious Interference with an Expected Inheritance
In 1992 the Wisconsin Court of Appeals adopted section 774B of the
Restatement (Second) of Torts which provides that one "[w]ho by fraud,
duress or other tortious means intentionally prevents another from
receiving from a third person an inheritance or gift he would have
otherwise received is subject to liability to the other for the loss of
the inheritance or gift."53 The elements of
this cause of action are: 1) an existence of the plaintiff's expectancy;
2) the defendant intentionally interfered with that expectancy; 3) the
conduct of the defendant, in and of itself, is tortious (for example,
fraud, defamation, bad faith, or undue influence); 4) there exists a
reasonable certainty that the testator would have left a particular
legacy had he or she not been persuaded by the defendant's tortious
conduct; and 5) existence of damages.
A Constructive Trust as an Equitable Remedy
A constructive trust is imposed by a court of equity to prevent
unjust enrichment that arises when one party receives a benefit the
retention of which would be unjust as against the other party. In
addition to establishing unjust enrichment, one seeking a constructive
trust also must establish that the benefit to the other party was
obtained or retained by means of actual or constructive fraud, duress,
abuse of a confidential relationship, mistake, commission of a wrong, or
other unconscionable conduct.54 The
constructive trust remedy has developed in the law, in part, because of
the strong public policy against persons benefiting from their own
wrongful acts.55
A constructive trust, being equitable in nature, may be used in a
variety of situations.56 For example,
legatees in a will may seek a court order to impose a constructive trust
over a decedent's predeath transfer of funds to one family member, if
that transfer is inconsistent with the decedent's estate plan. Arguably,
a court would scrutinize such a transfer more closely if the recipient
of those funds also was acting in a fiduciary capacity, such as acting
as the agent for the transferor under a power of attorney for finances
document.
Voiding a Contract Based on the Principal's Lack of Competence
In some instances, the financial exploitation of the older person
occurs when he or she is incompetent or marginally competent. The agent
may attempt to convince the principal to enter into a contractual
relationship with the agent that is extremely favorable to the agent.
For example, in one recent situation in Wisconsin, a personal care
worker became a 90-year-old man's agent under a power of attorney for
finances document, and then "contracted" with him to reimburse her for
$35,000 worth of personal care she allegedly provided to him over three
years. In such a situation, an action alleging that the principal lacked
mental capacity to enter the contract would be viable.
In 1995 the Wisconsin Court of Appeals in Hauer reaffirmed
the principle that a cause of action to void a contract based on an
individual's lack of competence may be raised either as an initial
claim, or as an affirmative defense.57 The
test for determining incompetency is whether the person involved has
sufficient mental ability to know what he or she was doing and to know
the nature and consequences of the transaction.58 Almost any conduct may be relevant, as may lay
opinions, expert opinions, and prior and subsequent adjudications of
incompetency.59
In Hauer, the court of appeals stated that where a contract
claim is involved, in order for a claim in tort to exist, a duty must
exist independently of the duty to perform under the contract, such as a
fiduciary relationship between the parties.60 This standard is met easily where the
contractor/contractee also are principal and agent under a power of
attorney for finances document.
The infancy doctrine, which holds that a minor who disaffirms a
contract may recover the purchase price without liability for use,
depreciation, or other diminution in value, does not apply to mental
incapacity to contract actions.61 The adult
mental incompetent may be subject to varying degrees of infirmity or
mental illness, not all equally incapacitating. Thus, absent fraud or
knowledge of the incapacity by the other contracting party, the
incompetent's contractual act is voidable by the incompetent only if
avoidance accords with equitable principles.62 The unadjudicated mental incompetence of one of
the parties is not a sufficient reason for setting aside an executed
contract if the parties cannot be restored to their original positions,
provided that the contract was made in good faith, for a fair
consideration, and without knowledge of the incompetence. The issue of
whether one party knows of the other party's incompetence is not limited
to actual knowledge, but also whether the party had "reason to know of
the incompetence." As such, a plaintiff's attorney may achieve a better
result for his or her client by alleging fraud and/or knowledge of the
plaintiff's incompetence in the complaint.
If a guardianship action has been filed on behalf of a principal
whose assets are being depleted by a power of attorney for finances, all
contracts, gifts, and transfers of property, except for necessaries, are
void after the filing of the guardianship petition and order for hearing
with the county office of the register of deeds.63 The only exceptions are if the court determines
that the ward continues to be able to enter into contracts in a limited
guardianship,64 or a guardian is not
appointed.
An Action for an Accounting
In Wisconsin, an action for an accounting is a separate and distinct
cause of action.65 An agent has a duty to
account to the principal. An agent must keep accounts, and when required
to account, has the burden of proving that she or he properly disposed
of funds that the agent is shown to have received for the principal. The
agent must show in detail the items expended and show when, to whom, and
for what purposes the payments were made so the principal and any
beneficiaries of those assets can ascertain the accuracy of the
accounts.66
There also are statutory actions for accounting that may be useful.
Agents under power of attorney for finances documents who become
personal representatives or guardians can be ordered to appear and
account.67 As described above, a statutory
petition to review the agent's performance also provides a mechanism for
the court to order the agent to account.68
Eviction
Unfortunately, agent/abusers living with their victims/principals is
an all-too-common scenario. The victim of financial abuse may be at a
loss as to how to legally remove the abuser from his or her home when
there is no formal lease agreement or rent paid. In these circumstances,
the law implies a "tenancy-at-will," defined as a tenant holding with
the permission of the tenant's landlord without a valid lease and under
circumstances not involving periodic payment of rent.69 The landlord must provide the tenant with 28
days written notice to terminate a tenancy-at-will.70
Action for Surcharge Against the Agent for Lost Income or Attorney
Fees
Under a court's equity jurisdiction, a court may impose a surcharge
against a trustee, personal representative, or guardian for
mismanagement of a principal's, beneficiary's, or ward's estate.71 It is possible for this surcharge to include a
fee in the amount of 5 percent per annum72
for loss of income as a result of mismanagement of funds, or perhaps a
higher rate of interest if bad faith is found, as well as requiring a
fiduciary to pay attorney fees.73
These theories also are applicable to an agent under a power of
attorney for finances. Thus, a court in its equity jurisdiction, as part
of an action for an accounting or other action, could impose a surcharge
against an agent for mismanagement of the principal's assets. An
interested person also could bring a lawsuit against the agent for
conversion, breach of fiduciary duty, and so on, and seek reimbursement
for his or her attorney fees for the costs of the suit. The interested
party must allege that the agent committed bad faith, fraud, deliberate
dishonesty, or extreme mismanagement of the funds.74
Theft Loss as a Federal Income Tax Deduction
Federal tax rules allow theft as a categorical itemized deduction to
reduce federal taxable income.75 Wisconsin
does not allow this deduction. The deduction will be disallowed where
the theft involves family members if there is no attempt to gain
reimbursement through civil action or to seek criminal prosecution of
the offender.76 To take full advantage of
the deduction, lawyers should consider consulting a tax specialist in
cases where substantial assets have been stolen by an agent to ensure
that the victim's complaint is properly drafted.
Legal expenses and other consequential costs of the theft or
mismanagement also may be deducted as itemized miscellaneous deductions
to the extent they exceed 2 percent of adjusted gross income. The remedy
of tax deductions is especially useful to offset the principal's tax
penalty for early withdrawal of IRAs where the agent has embezzled from
those IRAs.
Conclusion
Wisconsin lawyers can provide a great service to their clients and to
their communities by vigorously pursuing abusing financial agents.
Despite common belief, financial power of attorney documents are not
blank checks authorizing the agent to do with the agent's assets as the
agent wishes. In fact, the common law provides a formidable body of case
law clearly defining the agent's fiduciary responsibility. Additionally,
many causes of action and remedies are available, and, indeed, become
easier to establish, as a result of the abuser acting as an agent under
a financial power of attorney document. With these tools, lawyers can
assure their clients' financial security.
Endnotes
1 Frontline, National Center on Elder Abuse
(NCEA) Exchange, Fall 1997.
2 Elder Abuse –
Wisconsin Report. Produced each year by the State of Wisconsin,
Department of Health and Family Services, Division of Supportive Living,
Bureau of Aging and Long Term Care Resources.
3 Data is taken from a
national survey, which identified 270 incidents of abuse, entitled
Abuse and the Durable Power of Attorney by Jonathan Federman
and Meg Reed, published in 1994 by the Albany Law School.
4 Id.
5 See generally, 3 Am. Jur.
2d Agency, sec. 333, pp. 839-40, and the Restatement (Second) of Agency,
sec. 399, p. 231 for additional remedies.
6 See Wis. Stat.
§§ 243.07(1)(a),
and 243.10(1).
7 Alexopoulos v.
Dakouras, 48 Wis. 2d 32, 42, 179 N.W.2d 836, 840-41 (1970).
8 Bank of California v.
Hoffmann, 255 Wis. 165, 170, 38 N.W.2d 506, 509 (1949).
9 Alexopoulos, 49
Wis. 2d at 41, 179 N.W.2d at 841. See also Schock v. Nash, 732
A.2d 217, 225 (Del. 1999).
10 Matter of Estate of
Crabtree, 550 N.W.2d 168, 170 (Iowa 1996).
11 King v.
Bankerd, 492 A.2d 608, 611 (Md. 1985).
12 Alexopoulos, 48
Wis. 2d at 40-41, 179 N.W.2d at 840 (1970); State v. Hartman,
54 Wis. 2d 47, 56-57, 194 N.W.2d 653, 657-58 (1972).
13 Schock v. Nash,
732 A.2d 217, 225-27 (Del. 1999).
14 Bank of
California, 255 Wis. at 170, 38 N.W.2d at 509.
15 Schock, 732
A.2d at 225-27.
16 1997
Wis. Act 233, Section 2, created Wis. Stat. sections 243.07(6r)
and 243.10(8).
17 Wis. Stat. §§
851.21
and 880.01(6).
18 Wis. Stat. § 243.10(7)(b).
19 Wis. Stat. § 880.31.
20Wis. Stat. § 880.15.
21 As authorized by Wis.
Stat. section 243.07(3)(a).
22 Baum v. Rice,
157 S.W.2d 767, 769 (Ark. 1942).
23 Burg v. Miniature
Precision Components, 107 Wis. 2d 277, 280, 319 N.W.2d 921, 924
(Ct. App. 1982).
24 Hercules v.
Robedeaux Inc., 110 Wis. 2d 369, 329 N.W.2d 240, 242 (Ct. App.
1982).
25 Loehrke v. Wanta
Builders Inc., 151 Wis. 2d 695, 703, 445 N.W.2d 717, 721 (Ct. App.
1989), citing Restatement (Second) of Torts, sec. 874, comment b.;
Brooks v. Bank of Wisconsin Dells, 161 Wis. 2d 39, 467 N.W.2d
187 (Ct. App. 1991)(action in negligence against bank employee/power of
attorney for finances agent).
26 Century Capital Group v.
Barthels, 196 Wis. 2d 806, 815, 539 N.W.2d 691, 695 (Ct. App.
1995).
27 Loehrke, 151
Wis. 2d at 703, 445 N.W.2d at 721, citing Brown v. Maxey, 124
Wis. 2d 426, 433, 369 N.W.2d 677, 681 (1985).
28 Schara v.
Thiede, 58 Wis. 2d 489, 497, 206 N.W.2d 129, 133 (1973), citing
Adams v. Maxcy, 214 Wis. 240, 245, 252 N.W.2d 598, 600
(1934).
29 Lucas v.
Godfrey, 161 Wis. 2d 51, 60-61, 467 N.W.2d 180, 185 (Ct. App.
1991).
30 Alexopoulos, 48
Wis. 2d at 40-41, 179 N.W.2d at 840-41 (1970).
31 State v.
Hartman, 54 Wis. 2d 47, 194 N.W.2d 653 , 657-58 (1972).
32 Whipp v.
Iverson, 43 Wis. 2d 166, 169, 168 N.W.2d 201, 203 (1969).
33 Kanawha Valley Bank
v. Friend, 253 S.E.2d 528 (W.V. 1979), cited with approval in
Johnson v. Redd, 469 S.E.2d 1 (W.V. 1996).
34 Fletcher v.
Mathew, 448 N.W.2d 576 (Neb. 1989).
35 Id.
36 Whipp, 43 Wis.
2d at 169, 168 N.W.2d at 203 (1969).
37 Grube v. Daun,
173 Wis. 2d 30, 53-54, 496 N.W.2d 106, 114 (Ct. App. 1992).
38 Ramsden v. Farm
Credit Serv., North Central, 223 Wis. 2d 704, 718, 719, 590 N.W.2d
1, 7 (Ct. App. 1998), citing Grube v. Daun, 173 Wis. 2d 30,
53-54, 496 N.W.2d 106, 114 (Ct. App. 1992).
39 Grube, 173 Wis.
2d at 56, 496 N.W.2d at 114, 115 (Ct. App. 1992).
40 See Bank of
California v. Hoffmann, 255 Wis. 165, 170, 38 N.W.2d 506, 509
(1949); Vanderwall v. Midkiff, 421 N.W.2d 263, 266-67 (Mich.
App. 1988), modified on other grounds 463 N.W.2d 219 (Mich. App. 1990);
and Schock, 732 A.2d 217, 225.
41 In re Estate of
Fechter, 88 Wis. 2d 199, 223, 277 N.W.2d 143, 154 (1979).
42 Will of
Knierim, 268 Wis. 596, 602, 68 N.W.2d 545, 548 (1955).
43 First Nat'l Bank of
Appleton v. Nennig, 92 Wis. 2d 518, 536, 285 N.W.2d 614, 623
(1979).
44 In Matter of Estate
of Friedli, 164 Wis. 2d 178, 185, 473 N.W.2d 604, 606 (Ct. App.
1991).
45 In Matter of Estate
of Dejmal, 95 Wis. 2d 141, 155, 289 N.W.2d 813, 819 (1980).
46 In re Estate of
Kamesar, 81 Wis. 2d 151, 158, 159, 259 N.W.2d 733, 740 (1977).
47 In re Estate of
Taylor, 81 Wis. 2d 687, 701, 260 N.W.2d 803, 808 (1978).
48 In Matter of Estate
of Vorel, 105 Wis. 2d 112, 117, 312 N.W.2d 850, 853 (Ct. App.
1981); In Matter of Estate of Friedli, 164 Wis. 2d at 187, 473
N.W.2d at 606-607; Estate of Malnar, 73 Wis. 2d 192, 202, 243
N.W.2d 435, 440-41 (1976).
49 Price v. Bank of
Poynette, 144 Wis. 190, 128 N.W. 895 (1910).
50 Stillwell v.
Linda, 110 Wis. 2d 388, 390, 329 N.W.2d 257, 258 (Ct. App.
1982).
51 See 44 Am. Jur.
2d, Insurance, § 1762, and 43 Am. Jur. 2d, Insurance, §
811.
52 See 23 Am. Jur.
2d, Deeds, §§ 203-212.
53 Harris v.
Kritzik, 166 Wis. 2d 689, 480 N.W.2d 514 (Ct. App. 1992).
54 Wilharms v.
Wilharms, 93 Wis. 2d 671, 678-79, 287 N.W.2d 779, 783 (1980);
Singer v. Jones, 173 Wis. 2d 191, 196, 496 N.W.2d 156, 158 (Ct.
App. 1992).
55 Krueger v.
Rodenberg, 190 Wis. 2d 368, 378, 527 N.W.2d 381, 386 (Ct. App.
1994).
56 Id.
57 Hauer v. Union State
Bank of Wautoma, 192 Wis. 2d 576, 588, 532 N.W.2d 456, 460-61 (Ct.
App. 1995).
58 Id.
59 Id. at 590, 532
N.W.2d at 461.
60 Id. at 595-96,
532 N.W.2d at 462-63.
61 Id. at 592, 532
N.W.2d at 462.
62 Id. at 593, 532
N.W.2d at 462.
63 Wis. Stat. § 880.215.
64 Wis. Stat. § 880.33(3).
65 Michels v.
Michels, 240 Wis. 539, 546, 3 N.W.2d 359, 362 (1942).
66 Alexopoulos, 48
Wis. 2d at 40-42, 179 N.W.2d at 841 (1970).
67 See Wis. Stat.
§§ 879.61,
880.191,
and 880.192.
68 Wis. Stat. §§
243.07(6r)
and 243.10(8).
69 Wis. Stat. § 704.02(5).
70 Wis. Stat. § 704.19(3).
71 Matter of Estate of
Erlien, 190 Wis. 2d 401, 527 N.W.2d 389 (Ct. App. 1994).
72 Wis. Stat. § 138.04.
73 In the Matter of the
Guardianship, Estate of P.A.H., 115 Wis. 2d 670, 675-78, 340 N.W.2d
577, 580 (Ct. App. 1983), cited with approval in In the Matter of
Estate of Pirsch, 148 Wis. 2d 425, 433, 435 N.W.2d 317, 321 (Ct.
App. 1988).
74 P.A.H., 115
Wis. 2d at 675, 340 N.W.2d at 580 (Ct. App. 1983).
75 I. R.C. §
165.
76 See Solomon v.
Comm'r, T.C. Memo 1978-41, supplemented at T.C. Memo 1978-105.
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