"The Court finds he's a thief" Lessons in how not to be an attorney-in-fact and personal representative of an estate (and when not to appeal)
“The Court finds he’s a thief”: Lessons in How Not to Be an Attorney-in-Fact and Personal Representative of an Estate (and When Not to Appeal)
The Tennessee Court of Appeals has upheld a judgment of over $2 million against the son of two deceased parents in an action brought against him by his siblings for breach of fiduciary duty, both as an attorney-in-fact and as personal representative of their mother’s estate.
Viola Copas and her husband Clyde Copas were owners of the Winding Brook Farm in Washington County, Tennessee. They had three children: Randall Copas, Norman Copas, and Phyllis Pearce.
In 1991, Viola executed a Will in which she bequeathed the farm to Randall and divided the monetary assets between Norman and Phyllis.
From 1997 forward, Randall had no job except for helping with the farm. In August of that year, his parents named Randall as their attorney-in-fact under durable powers of attorney.
Viola and Clyde had several bank accounts, including a farm account, which was owned by them as husband and wife.
After Clyde’s death in March 1998, Randall began taking money from Viola over the next several years, until her death in 2005. To give a flavor to his activities,
In March 2000, RC used the POA to sell another 3.794 acres of Mother’s land … for $320,000. The purchaser paid $104,865 at closing and signed a note for $200,000 to be paid in January 2001. From the $104,865 RC received on March 28, 2000, he admits he took $24,865 and only deposited $80,000 into the Farm Account. RC further acknowledges that he took an additional $19,532.73 from the Farm Account in 2000.
Six months before Viola died in July 2005, while she was in and out of the hospital, Randall set up two other bank accounts, one of which was a right of survivorship account funded with an initial deposit (of Viola’s money) of $150,000.
At the time of her death, Viola had approximately $302,000 in cash in various accounts.
A few months after Viola died, Randall was named personal representative of her estate. Instead of opening an estate account, Randall used the existing farm account for that purpose, adding his wife as a signer.
In 2008, Randall filed an accounting with the Washington County Probate Court. The clerk and his siblings objected due to, among other reasons, insufficient documentation. He was ordered to file a second accounting, which was done in February 2009; again, that was objected to.
Meanwhile, his siblings uncovered that Randall could not account for most of the over $2 million to which he had access as their mother’s attorney-in-fact.
At a hearing on the second accounting, the court found Randall in willful contempt of court for failing to file a proper accounting and not complying with the court’s orders.
A third accounting was filed, objected to, and at the hearing on that accounting, Randall admitted that starting in 1998 he took at least $709,420.74 from Viola and her estate, but justified his actions by telling the judge:
[O]ver all these years I took care completely, done the caregiving for both of them. The farm, them, the home, their yard, their garden, helped canning, my wife did or whatever. I want the court to realize that -- that everything that was done I did it. I did it. I’m glad I was able to do it. I did live out of the money, it may have totaled thirty or forty thousand a year, I done everything like it should have been done on this. I done it to the best of my ability. I cared for them, I was there with her, I stayed with her, I bathed her. . . . I done the best that was -- no, they had no idea, Norman or Phyllis either one, my brother and sister here, what we went through to keep the place going or keep it open or just keep the -- keep the property. Yes, we borrowed money, we borrowed it and I took care of them, I told them, I said, “No matter what it took, I would not put her in a nursing home.” And I kept my promise to her.
. . . But what I can tell you is I took care of everything that they needed and how I went about it may not have been exactly the way it should have been, but I took care of every need they had, stayed with them and why [Siblings] didn’t visit, why they didn’t come over to the house when Phyllis lives a mile away . . . .
At the end of the proof, the trial judge said,
[T]his is the worst estate and power of attorney case I’ve seen come through my court. I’ve been on the bench now about twenty-one years and I have seen some real messes so far as operating an estate account, but I have never seen any that are in this bad a shape. …
The record is clear that Mr. Copas wrote checks to cash and then cashed them and put the money in his pocket. … The Court finds he’s a thief.
The judgment was affirmed on appeal.
In re Estate of Viola B. Copas, January 20, 2012.