California attorney Charles A. Triay prepared a power of attorney for Diane Mills in 2004, naming her friend Robert Kahuanui as her agent. Within two months, Mr. Kahuanui had been arrested on five felony counts of stealing from Ms. Mills, who had by that time been evaluated as a incapable of making financial decisions because of her mental illness. In the aftermath, Ms. Mills sued her attorney because, she argued, he had failed to adequately investigate Mr. Kahuanui’s suitability to serve as her agent.

The trial judge summarily dismissed Ms. Mill’s complaint against Mr. Triay, and she appealed that dismissal to the California Court of Appeals, the state’s intermediate appellate court. That court affirmed the ruling dismissing her lawsuit, and also discussed a number of common issues involved in preparation and signing of durable powers of attorney. The opinion makes clear that it is often difficult to walk the line between helping clients and facilitating exploiters—though the dismissal of Ms. Mills complaint is resoundingly approved on the facts of her case..

Mr. Triay apparently did not know it when he first met Ms. Mills, but the man she entrusted with her finances had been supplying her with vicodin and marijuana for several months before the power of attorney was prepared. Ms. Mills had become increasingly paranoid that her estranged husband might get control of her assets, might have her committed to a psychiatric facility, or might inherit her assets if she died. She asked Mr. Kahuanui to help her find a lawyer, and he located Mr. Triay—by asking his own criminal defense attorney for a referral.

Mr. Triay met with both Ms. Mills and Mr. Kahuanui at the only session before she signed the power of attorney. He recounted that she appeared to be very nervous, that she wore her sunglasses through the entire interview and that she was very thirsty; he deduced that she was either mildly intoxicated or was just coming down from her previous night’s high. Nonetheless, she could recount her family history and assets, and she was clear about what she wanted. Mr. Triay prepared the documents, she signed them and the originals were handed to Mr. Kahuanui.

After they left Mr. Triay realized that he had not met with Ms. Mills separately, and he arranged for a follow-up meeting. By the time she returned to his office, the police investigation had already commenced; Mr. Triay knew about it, but Ms. Mills seemed more capable than during their previous interview and repeated her wishes and instructions--with one modification. She told Mr. Triay that she still loved her husband, and asked him to change her will back so that he would receive her estate on her death. Mr. Triay prepared a new will and Ms. Mills signed it.

On those facts, ruled the appellate court, Mr. Triay was not liable to Ms. Mills for the misdeeds of her chosen agent. Importantly, the court noted that there was no evidence that Mr. Kahuanui actually used the power of attorney to effect conversion of her assets. Ms. Mills also argued that the power of attorney was defective because Mr. Triay had not provided the warnings required by California law when a lawyer is not involved—the court noted that there was no reason to apply that statutory provision since an attorney did prepare the document. Finally, Ms. Mills asked that liability be based on Mr. Triay's failure to have her sign a written fee agreement as required by California rules governing lawyers. The court dismissed that argument summarily, pointing out that the failure to provide a written fee agreement would allow Ms. Mills to void her oral agreement with Mr. Triay, but had nothing to do with any thefts by her agent. Mills v. Tiay, June 22, 2007.

Would you like to subscribe to Elder Law Issues? Simply provide your e-mail address and name below, and click "Subscribe". At the same time, you may choose to also subscribe to The Voice, the newsletter of the Special Needs Alliance.

Privacy note: We do not ever use your e-mail address or name for any purpose other than to send out our subscription-based newsletter. You can rest assured that we will not sell, trade or share this information with any other person or entity. We have no ancillary or associated companies or entities to which we could provide your e-mail address, either.

© 1993-2008 Fleming & Curti, P.L.C.
520-622-0400 /  FAX: 520-203-0240