Attorney Did Not Violate Rules of Conduct by Drafting POA Revocation for Nursing Home Client

Overriding a disciplinary board, North Dakota's highest court rules that an attorney who drafted a revocation of a power of attorney for a client who was in a nursing home did not violate professional rules of conduct in failing to contact the client's family because the client was not incapacitated. Runge v. Disciplinary Board of the North Dakota Supreme Court (N.D., No. 2015 ND 32, Feb. 12, 2015).

Norman Franz executed a durable power of attorney, naming his daughter, Rose Pfeifer, as his agent. After Mr. Franz had a heart attack, he entered a nursing home. Mr. Franz's friend, Ida Giesinger, contacted attorney Gregory Runge, asking Mr. Runge for legal advice because Mr. Franz wished to leave the nursing home, but Ms. Pfeifer would not let him. Mr. Runge spoke with Mr. Franz on the phone, drafted a revocation of the power of attorney, and went to the nursing home where he met with Mr. Franz to discuss the revocation.  After Mr. Franz signed the revocation, he left the nursing home to live with Ms. Giesinger.

Ms. Pfeifer filed a disciplinary complaint against Mr. Runge, alleging he acted improperly in preparing the revocation without speaking to Mr. Franz's family or the nursing home. The disciplinary board found that Mr. Runge violated a professional rule of conduct by representing a client with limited capacity without contacting the client's appointed representative. Mr. Runge appealed.

The North Dakota Supreme Court dismisses the complaint against Mr. Runge, holding that he did not violate professional rules of conduct by preparing the revocation for Mr. Franz. According to the court, because Mr. Franz was not under guardianship or conservatorship and there was nothing to indicate he was incapacitated when he signed the revocation, Mr. Franz had the authority to act for himself and Mr. Runge was not required to contact his family before performing legal work for him.

For the full text of this decision, go to: https://www.ndcourts.gov/court/opinions/20140135.htm

For an ABA Journal article on the decision, click here.

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