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August 28, 2001: Responsibilities of an Agent/Fiduciary

Q: An agent for a friend offered to sell to me one of my friend's rental houses "as is" at its highest possible (wishful) sales price. Others have told me that the "as is" sales price is actually $35,000 less. Yet I know my friend, who is very sick and in a nursing home, wanted me to own the house, and I can't believe that he would support his agent's actions of trying to sell the house at this price. Is there anything I can legally do?

A: I have been concerned about the problem of when do fiduciaries (people who are in a position of trust and have a duty to act on behalf of another) cross the line and become liable for their actions and decisions, especially when representing older people.

The legal standard varies with the type of fiduciary (executor, agent, guardian, trustee, bailee, financial advisor, etc.) and the type of issue involved. But for this fact pattern, in judging an agent's conduct, let's use the standard of what a reasonable person would do under the circumstances.

Now, not meaning to be judgmental in any particular situation and only using this fact pattern for discussion purposes, let us assume that the agent is not trying to run you off so that he or she can actually get the property. That would open up a whole area where liability in one form or another would attach.

An agent must follow the wishes of the principal, so we must assume the principal approves the agent's position. If the agent is not following the principal's wishes or desires (even if the agent feels that it is for the principal's own good) then the agent can be liable.

It seems as though the agent is also giving financial advice and managing assets. If the bottom line is to raise money for nursing home expenses, then there are alternatives to a sale of the home - a reverse mortgage, a loan from a private individual, a lease with an option to buy, a sale on an installment basis where the payments meet the seller's financial needs, a private annuity, etc. Under these circumstances and assumptions, an agent has a duty to at least explore and evaluate these alternatives before a sale, if in fact the agent has taken over the job of a financial manager and advisor.

But is a conventional sale the best way to go for your friend or for you? A sale could dramatically reduce the available resources for your friend, resulting in selling expenses (including a real estate commission) of about 10% of the gross sales price, triggering fixer-upper expenses of between $25,000 to $40,000 for the house, and capital gain taxes of approximately $25,000, not to mention depreciation recapture, and loss of rental income for your friend. And this assumes that the property will sell for $155,000, which is not likely.

You might swallow your pride and make an offer for the property of, say, $95,000 "as is" and structure the sale in such a way as to minimize selling expenses, avoid the fixer-upper expenses, have no depreciation recapture, and reduce or avoid any capital gains tax and yet provide the money needed by your friend.

If the agent looks closely, it might be in the best interest of his or her principal not to take the highest gross figure but the best net figure.

But what if an agent takes the position that this is all too complicated and he or she will just sell it? The agent has placed himself or herself in a position where making the decision is his or her job. The agent must put the principal's interest first, not what is easy or understandable for the agent.

If that means thinking "outside the box" and netting an extra $10,000 or $20,000 for the client, by taking the "net" price, as described above, rather than the highest sales price, then maybe the agent should be held liable to the principal for the loss.

And who would blow the whistle? You of course, especially when it comes to older people, even though they still might be trying to make their own decisions. I believe most judges would recognize your efforts to call to the attention of the Court conduct that appears to be violating the standard of what a reasonable person would do.

And to the fiduciaries that might take exception to this kind of scrutiny and feel slighted that "they are just trying to help," the fiduciary's feelings are not legally important but the welfare of the client is. To paraphrase what Harry Truman supposedly said, "don't put yourself in the kitchen if you aren't prepared for the heat." Saying it a bit differently, don't cook if you are not prepared to be held accountable for what ends up on the dinner table.

Oh, your question (there's nothing worse than a rambling, absent-minded, semi-senile, old columnist). The answer is yes.

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