Judges typically use a restrained, neutral style when writing their opinions. So Duane Farrant may have realized things were not going well with his appeal when he read the very first words of the appellate court’s decision: “This case serves as a textbook example of how a fiduciary should not proceed.”
To erase any possible ambiguity, the judges then added, “Appellant continues to demonstrate that he has no concept of his duty to his elderly and incapacitated mother and her conservatorship estate.”
The wording of the decision may have been somewhat more direct and acerbic than usual because this was Mr. Farrant’s third trip to the California Court of Appeal (Friend v. Farrant), all of which resulted in rulings against him.
Norma Farrant, born in 1926, executed a durable power of attorney in 2008, when she was 82. It gave her son broad powers to manage her properties if she was incapacitated.
In 2015, when Norma was living in Missouri, a court in that state ordered Duane to account for all transactions he conducted during the prior year on behalf of his mother. Later court testimony indicated he did not comply.
Norma moved to California in 2016, and in January of 2017 Angelique Friend, a professional fiduciary, was appointed conservator of Norma’s person and estate.
In November of that year, Diana Farrant, Norma’s daughter, asked the Ventura County Superior Court to compel Duane to account for his actions on behalf of their mother. A physician had determined that Norma, then living in a skilled nursing home, was completely unable to communicate, receive information, or care for herself.
Duane acknowledged in a February, 2018, court hearing that he had controlled Norma’s pension checks and rent payments on a home she owned in Newbury Park. He was ordered to provide an accounting by the end of March, 2018.
He failed to do so, and in July the court ordered him to appear in person or by video call on October 16. He didn’t appear at that hearing, sending an attorney to speak on his behalf but not providing an accounting. The court ordered him to submit the accounting by December 14, warning that “the hammer is coming down very hard” if he failed to do so.
No accounting was submitted, and a hearing was held on January 29, 2019. Duane appeared along with his attorney, and told the court they were having trouble getting statements from Duane’s bank, and a lot of his records had been lost in a flood.
The court-appointed conservator Friend said Norma’s estate had “racked up over $100,000 in fees…needlessly” because of the delays, and asked the court to impose sanctions against Duane of $1,000 per day until the accounting was filed.
On May 31, 2019, Duane filed an accounting showing two rent payments and disbursements of more than $44,000. It did not include any information about Norma’s pension income. It did provide bank statements, but most of the information on these was blacked out.
At a hearing in September of 2019, Duane appeared with a new attorney who asked for permission to submit an amended accounting by December 20, which was later extended to January 30, 2020. An amended accounting was not filed.
Interspersed with the hearings in probate court and its rulings against Duane were two trips he made to the California Court of Appeal, objecting to previous decisions by the lower court. Both were unsuccessful.
The conservator again asked the probate court to intervene, and in a July 2020 hearing the judge found that Duane had failed to pay Norma’s conservatorship estate $63,448.90 plus sanctions of $121,000 for the 121-day delay in submitting the accounting.
Duane made his third trip to the Court of Appeal. He argued that the lower court exceeded its jurisdiction because he did not owe a fiduciary duty to his mother’s conservatorship estate.
“He is wrong,” the appellate justices ruled.
A court can require an accounting even if there is no fiduciary relationship between the parties to a dispute, they noted.
But the durable power of attorney Norma gave to Duane, which became effective when she was incapacitated, made him a fiduciary.
Duane also objected to the lower court’s decision on other technical grounds, which the appellate judges also rejected. They affirmed the decision against Duane, and ordered him to pay the costs of Conservator Friend’s appeal.
Unfortunately, financial elder abuse happens frequently, and often the wrongdoer is the victim’s child or another member of the family. Safeguarding against the possibility of such abuse should be an important part of the estate planning process.
By Lynda I. Chung