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    Wisconsin Lawyer
    September 01, 2000

    Wisconsin Lawyer September 2000: Remedying Abuse By Finance Agents

    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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