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Lawyer/Draftsman Not Liable For Agent’s Misappropriations

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When Mark Hall decided to take financial advantage of Helen Fuite he began, as so many exploiters of the elderly do, by having her sign a financial power of attorney. He took her to his own attorney, Richard C. Holst of Wyoming, Michigan, to have the document prepared; at the same time Mr. Holst prepared a will naming Mr. Hall as the sole beneficiary of Ms. Fuite’s estate and deeds transferring her property into Mr. Hall’s name. After the exploitation was discovered Ms. Fuite’s conservator sought recovery against not only Mr. Hall but also against attorney Holst.

Ms. Fuite was a widow in her 80s when Mr. Hall befriended her. Although her mental capacity may have been diminished somewhat no court proceeding had ever been initiated to have her capacity legally determined. According to the conservator appointed later to handle Ms. Fuite’s estate, however, anyone could have seen at the time that she was incapacitated.

Ms. Fuite’s conservator filed a lawsuit against Mr. Holst, raising two separate arguments. According to the conservator Mr. Holst knew that Mr. Hall was “an illiterate, financial incompetent,” and he should have exercised his professional judgment to dissuade Ms. Fuite from naming him as her financial agent. Furthermore, argued the conservator, Mr. Holst had a duty to determine whether Ms. Fuite was competent before she signed any of the documents he prepared for her, and he should be liable for the losses she incurred by use of those documents.

The judge hearing the case threw both claims out, finding that they could not succeed under Michigan law. Ms. Fuite’s conservator appealed to the Michigan Court of Appeals, which upheld the dismissal of the claim against attorney Holst.

According to the appellate court, an attorney has no duty to talk his or her client out of making foolish mistakes. Even if Mr. Holst did know that Mr. Hall was financially incompetent he had no obligation to talk Ms. Fuite out of naming him as her agent. To hold otherwise, noted the court, would impose an impossibly high burden on attorneys to second-guess their clients’ decisions. Such a duty, if imposed, might even lead to an obligation to counsel clients against unwise selection of business partners or executors.

The appellate court also threw out the claim that Mr. Holst had not evaluated Ms. Fuite’s mental capacity before allowing her to sign the documents. Mr. Holst had made reasonable inquiry into Ms. Fuite’s understanding of the documents she was signing. He had acted, said the court, with “ordinary learning, judgment [and] skill under the circumstances using reasonable professional judgment.” If anything his mistake was a “mere error of judgment,” and he was not liable for the subsequent losses. Persinger v. Holst, December 4, 2001.

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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.