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Russ ex rel. Schwartz v. Russ

Wisconsin Supreme Court
734 N.W.2d 874 (2007)


In 1985, Johnnie Russ (Johnnie) (plaintiff) had a stroke and suffered from health problems thereafter. In 1992, Johnnie moved in with her son, Elliott Russ (Elliott) (defendant). Johnnie and Elliott opened a joint bank account in which they deposited all of Johnnie’s income so that Elliott could pay her bills and otherwise manage her finances. In 1999, Johnnie signed a durable power of attorney (POA), naming Elliott as her agent. The POA document did not grant Elliott general authority over Johnnie’s income. In 2002, the circuit court declared Johnnie to be incompetent, appointed Marion Schwartz (plaintiff) as Johnnie’s guardian, and terminated the POA. In 2003, on Johnnie’s behalf, Schwartz sued Elliott. Schwartz claimed that between 1999 and 2002, while Elliott was acting as Johnnie’s POA agent, Elliott improperly withdrew money from the joint account for his own uses. Schwartz argued the withdrawals were in breach of Elliott’s fiduciary duty to Johnnie as her agent. The circuit court dismissed the complaint. Schwartz appealed.

Rule of Law


Holding and Reasoning (Crooks, J.)

Concurrence (Abrahamson, C.J.)

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