Coulter v. Herring

By Judge Robert P. Doherty, Jr. Plaintiff Executor prays for an accounting of the deceased principal’s assets from the Defendant, who was the sole agent and attorney-in-fact for decedent from 1989 until her death in 1995. Defendant, by demurrer, alleges that (1) Plaintiff lacks standing to demand an accounting as he is not an “interested person” as set forth in Code of Va. § 11-9.6 or as defined'in § 37.1-132.1; and (2) that if Plaintiff has standing to request an accounting, such accounting is limited to a two-year period according to § 11-9.6. The Court finds that the Defendant’s reliance on these statutes is misplaced. Both § 11-9.6 and § 37.1-132.1 are additions to, and not deletions from, the common law concept of agency. They deal with the very narrow fact pattern where an inter vivos grant of authority is made by a principal to an agent, and thereafter, before death, the principal suffers a diminution of his capacity to the point that he is deemed at law to be suffering under a disability. Under such circumstances, these code sections allow an “interested person” on behalf of the incapacitated principal to obtain an accounting from the agent for the limited period of two years. That two-year limitation does not apply between principal and agent. [309] The applicable law in this case is that an agent owes an absolute duty of fidelity and of accounting to his principal. Upon the death of the principal, his personal representative is cloaked with the necessary powers to marshal the decedent’s assets and to administer his estate. If the estate includes assets entrusted to the decedent’s agent during the decedent’s lifetime, then the personal representative may demand an accounting of the agent, just as if he were the principal. See Oden v. Salch, 237 Va. 525 (1989), and Koury v. Rossie, 33 Va. Cir. 460 (1994). The Defendant’s demurrer is overruled.