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Bank Is Not Liable For Alleged Mismanagement Of Account

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In 1998, Gertrude Hoener signed a bank card giving Ronald Hoener power of attorney over her accounts at People’s Bank of Pratt, Kansas. By the time she died in 1995, he had written checks to himself for $140,000 and had liquidated over $250,000 in certificates of deposit held in her name.

When she signed the bank’s signature card, Mrs. Hoener also instructed the bank to send her monthly statements in care of Mr. Hoener. That fact became critically important in the subsequent litigation. Mrs. Hoener’s daughter (and executrix) argued that the bank had failed in its duty to keep Mrs. Hoener informed of the status of her account; the bank, on the other hand, argued that it had complied with the instructions given to it by a fully competent customer, and insisted that it had no obligation to look behind the customer’s motivations.

Apparently Mrs. Hoener first learned that she was running out of money about two years before she died. At that point she considered authorizing the sale of some property to pay for her care (she was by then residing in a nursing home), but it is not clear whether she thought that Mr. Hoener was taking advantage of her. In any event, the Kansas Court of Appeals later ruled, she had a duty to investigate the status of her affairs at that point, and her daughter could not make the claim on behalf of her estate years later.

After Mrs. Hoener’s death, her daughter brought suit against the bank for its alleged involvement in the dissipation of Mrs. Hoener’s estate. When the bank insisted its only obligation was to deliver statements to its customers, Mrs. Hoener’s daughter argued that bank employees had actual knowledge of the alleged financial exploitation, and therefore should have taken extra steps. The trial court disagreed, and granted the bank’s motion to dismiss the lawsuit.

On appeal, the Kansas Court of Appeals agreed that dismissal was proper. The appellate judges noted that the bank’s only duty was to send statements to the address directed by its customer, and that if there was any additional duty it was too late to bring the lawsuit more than two years after Mrs. Hoener herself should have realized something was amiss. Henrichs v. Hoener, Sept. 29, 1999.

In Arizona, the result likely would have been the same. Arizona law does require tax preparers and others to report financial exploitation of vulnerable adults, but the language is not broad enough to include bank officials. Like Kansas, Arizona requires a bank customer to make any complaint about handling of an account within a short period of time after statements have been mailed. Even if there was evidence the bank was aware of mismanagement, any lawsuit would have to be filed within that time.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.