Civil Practice: Request for accounting from attorney denied

Where a woman sought an accounting from the attorney representing her aunt because she believed that he was mismanaging her affairs, the circuit court did not abuse its discretion in denying her petition.

Background

Margarett Ward executed a durable power of attorney, naming Carl Boggess as her agent. Doris Williams, Ward’s niece, suspected that Boggess was mismanaging Ward’s finances and filed a petition seeking an accounting under Code § 64.2-1614(A)(5) of the Uniform Power of Attorney Act. Boggess opposed the petition, arguing that Williams was not entitled to an accounting and that Ward was a “very private person” when it came to her financial affairs.

The circuit court explained that, even though her status as Ward’s niece gave her standing to bring the action under Code § 64.2-1614(A)(5), it nevertheless had discretion to grant or deny the petition after considering the interests of Ward and her estate. Ultimately, the court believed that Williams had insufficient interest in the matter and her petition boiled down to a “fishing expedition.”

Analysis

The parties agree Williams had standing to seek a statutory accounting as Ward’s niece because Code § 64.2-1614(A)(5) allows “[a]n adult who is a brother, sister, niece, or nephew of the principal” to “construe a power of attorney” or “review the agent’s conduct.” The question is, when a qualifying relative makes a timely petition for an accounting, must the court order discovery or grant other relief, or does the statute give the trial court discretion?

Under the statute, once an enumerated claimant files a petition with the appropriate court, and after the court has provided reasonable notice to the agent and principal, the court “may” hold a hearing. “Upon consideration of the interest of the principal and his estate,” the court “may” then “dismiss the petition” or enter “such order or orders respecting discovery as it may deem appropriate.” Nowhere in the statute does it compel a court to grant a petition simply because a claimant is included in one of the enumerated categories. Instead, the “highly permissive ‘may’ language” endows the trial court with discretion.

Williams argues that the trial court abused its discretion by relying on improper factors — namely, that Williams had not shown a sufficient interest in the accounting and that Ward was a “private person.” As for the first consideration, this court cannot say it was improper for the court to consider what interest Williams had in the outcome of the accounting. The production of financial records takes time and effort, as would any more detailed accounting based on those records. Thus, this court cannot say the court abused its discretion by finding that Williams’s interest in “relief” and “satisfaction” amounted to a “fishing expedition.”

Turning to the trial court’s consideration of the evidence that Ward was a “private person,” Code § 64.2-1614(B)(2) requires a court to consider “the interest of the principal and his estate” in determining whether to grant or deny the petition. The statute does not define this criterion, but the principal’s general disposition as to financial matters and to whom the principal entrusted financial information appear to be fairly encompassed by this factor. Thus, this court cannot say it was an abuse of discretion for the court to consider evidence (confirmed by Williams’s own testimony) that the principal was a private person.

Williams also generally argues that the trial court abused its discretion because she “alleged specific acts on the part of the agent that would constitute a breach of fiduciary duty if proven and therefore justified” a statutory accounting. Having concluded that no improper factors were considered by the court, the court evaluates this argument for whether the court in weighing all the factors “commit[ed] a clear error of judgment.” It sees no clear error of judgment here.

Affirmed.

Williams v. Boggess, Record No. 0600-23-3, Apr. 9, 2024. CAV (Lorish). From the Bedford County Circuit Court (Updike, Jr.). M. Paul Valois (James River Legal Associates, on briefs), for appellant. G. Carl Boggess, pro se, for appellee. VLW 024-7-112. 7 pp.