Russ ex rel. Schwartz v. Russ
Wisconsin Supreme Court
734 N.W.2d 874 (2007)
After a 1985 stroke left Johnnie Russ (Johnnie) (plaintiff) with lasting health problems, she moved in with her son, Elliott Russ (Elliott) (defendant) in 1992 and opened a joint bank account with him so he could pay her bills and manage her finances using her deposited income. In 1999, Johnnie signed a durable power of attorney (POA) naming Elliott as agent, but the POA document did not give him general authority over her income. After a 2002 court found Johnnie incompetent, appointed Marion Schwartz (plaintiff) as her guardian, and terminated the POA, Schwartz sued Elliott, alleging that between 1999 and 2002 he improperly withdrew joint-account money for his own use, breaching his fiduciary duty as Johnnie's agent. The circuit court dismissed the complaint, and Schwartz appealed.
Whether, if conflicting presumptions arise relating to a power-of-attorney agent's use of funds from a joint bank account the agent owns with the principal, the court makes a determination based on the facts and the credibility of the witnesses.