Cite as B307338
Filed August 2, 2021, Second District, Div. Six
By Michelle Barnett Batista
Aaron, Riechert, Carpol & Riffle, APC
Headnote: Conservatorships – Duty to Account – Evidentiary Hearings
Summary: An agent under a power of attorney has a fiduciary relationship to the principal when acting thereunder, and must account for funds controlled during the agency; there is no right to an evidentiary hearing where there is no offer of proof of contested factual issues.
In 2008, Norma executed a durable power of attorney naming her son, Duane, as her attorney-in-fact. In 2017, Angelique was appointed conservator of Norma’s person and estate. Thereafter, the probate court ordered Duane to prepare a formal accounting for his activities as actual or ostensible attorney-in-fact. After repeated delays and missed deadlines, Duane filed an accounting and Angelique objected. The court, relying on declarations and affidavits, denied Duane’s request for an evidentiary hearing and found that Duane breached his fiduciary duty by commingling funds and self-dealing. Over Duane’s objections that he owed no fiduciary duties to the conservatorship estate that would require him to account the court surcharged him, and imposed sanctions for his failure to timely file the accounting. Duane appealed.
The court of appeal affirmed. It is within the discretion of the Probate Court to order an accounting, and the only prerequisite is that some relationship exists that requires one. A fiduciary relationship generally requires an accounting. As an agent under a power of attorney who acted under it, Duane was a fiduciary, and needed to account for the funds he controlled, in this case to the conservator. By failing to object to the court’s consideration of affidavits and declarations Duane forfeited his objections to their use in a contested proceeding, and could not raise the objection for the first time on appeal. Finally, the court did not abuse its discretion in denying Duane’s request for an evidentiary hearing. An abuse of discretion results in reversible error only if it is prejudicial. An assessment of prejudice cannot be made where appellant did not make an offer of proof in the probate court because, among other things, the appellate court must know the substance of the excluded evidence in order to assess prejudice.