A California appeals court has dismissed a legal malpractice suit against an attorney who allowed a client to appoint an untrustworthy individual as her agent under a power of attorney, allegedly without investigating the attorney-in-fact's background.
In 2004 Diane Mills, who had a long history of mental illness and drug abuse, met Robert Kahuanui. Mr. Kahuanui gained Ms. Mills's trust and began supplying her with the painkiller Vicodin and marijuana. Ms. Mills subsequently became convinced that her estranged husband was trying to have her committed. Mr. Kahuanui persuaded her that the way to avoid this was for Ms. Mills to appoint him as her attorney-in-fact under a power of attorney.
Accordingly, Mr. Kahuanui located an attorney, Charles A. Triay, and Mr. Kahuanui and his wife accompanied Ms. Mills to see Mr. Triay. Even though Ms. Mills appeared to be impaired, Mr. Triay prepared the power of attorney as well as a will and a health care directive for Ms. Mills. He failed to meet with Ms. Mills alone and he later delivered the prepared documents to Mr. Kahuanui, not Ms. Mills. Over the next several months, Mr. Kahuinui and his wife stole thousands of dollars from Ms. Mills and sold much of her property, although Mr. Kahuanui apparently never actually used the power of attorney to appropriate any of Ms. Mills's property.
Ms. Mills sued Mr. Triay for legal malpractice, alleging that Mr. Triay was professionally negligent for allowing Ms. Mills to select as her attorney-in-fact an untrustworthy individual without adequate investigation of his background. The trial court dismissed the case against the attorney, finding that Ms. Mills had failed to connect Mr. Triay's conduct with Mr. Kahuanui's misdeeds. Ms. Mills appealed, and the California Court of Appeals agreed with the trial court. Neither court, however, considered whether Mr. Triay violated California's rules of professional responsibility for attorneys.
While for most people a durable power of attorney is the most important estate planning instrument available, you need to have someone you trust to serve as your attorney-in-fact should the need arise. The power of attorney document should be drafted by an attorney who will ask questions to make sure you trust the person you appoint and to ensure, as much as possible, that the person will not take advantage of his or her position. (For more on the durable power of attorney, click here.)
To read the unpublished opinion in Mills v. Triay (Cal. Ct. App., 1st, No. A113707, June 22, 2007), click here.
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