In re Runge

Norman Franz executed a durable power of attorney authorizing his daughter, Rose Pfeifer (plaintiff), to make decisions regarding his property and finances. The document expressly stated that Franz continued to also have decision-making authority, could revoke the power of attorney at any time, and did not authorize anyone to make his medical decisions. After a heart attack, 79-year-old Franz began living at a nursing home. The home’s medical personnel executed an emergency-care statement for Franz, checking boxes indicating that Franz was incapable of making medical decisions. The next year, Franz’s friend Ida Giesinger contacted attorney Gregory Runge (defendant), saying that Franz wanted to leave the home and asking Runge to help him. Runge conducted an online search to confirm that Franz was not subject to a guardianship or conservatorship. Finding only the power of attorney, Runge phoned Franz to discuss his wishes. Franz told Runge that he wanted to leave the home but that Pfeifer was forcing him to stay. Runge drafted a revocation of the power of attorney and took it to the home. After Runge explained the revocation’s consequences, Franz indicated that he understood and signed the form. Runge believed that Franz was competent to execute the form and that whatever health problems might have plagued Franz upon entering the home were no longer impacting his capacity. After executing the revocation, Franz left the home and moved in with Giesinger. Pfiefer filed a disciplinary complaint against Runge, claiming that Runge violated the North Dakota rule of professional conduct concerning the representation of persons with limited capacity by preparing the revocation without consulting Franz’s family or nursing-home staff to determine Franz’s health condition. A disciplinary committee agreed and issued an admonition. The disciplinary board affirmed, and Runge appealed.