IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF SYLVIA CHOTT, KATHERINE MYER, Appellant.
from the Iowa District Court for Polk County, Lawrence P.
Myer appeals the district court ruling finding she violated
her obligations to her mother Sylvia Chott as her
mother's power of attorney by withdrawing funds from the
mother's bank account and ordering her to return the
money and pay attorney fees and court costs.
G. Borseth of Borseth Law Office, Altoona, for appellant.
W. Eichorn of Pearson Bollman Law, West Des Moines, for
Considered by Potterfield, P.J., and Doyle and Mullins, JJ.
POTTERFIELD, Presiding Judge.
Myer appeals the district court's decision ordering her
to return $29, 597.29 to her mother, Sylvia Chott. Katherine
transferred the money from Sylvia's bank account to her
own while she had a power of attorney for Sylvia. On appeal,
Katherine argues the district court erred by: (1) reviewing
the transfer of funds under Iowa Code section 633B.116 (2017)
as an agent's use of a power of attorney; (2) finding
Katherine did not act in good faith by transferring the money
from Sylvia's bank account to her own and that Sylvia did
not act intelligently and voluntarily when making the
transfer; and (3) assessing attorney fees and court costs
against her. Katherine further argues Kenneth, her brother
and the current holder of Sylvia's power of attorney,
should pay her attorney fees for this appeal. In response,
Sylvia asks that we affirm the award of the district court
and award her appellate attorney fees.
Background Facts and Proceedings
case involves three family members: siblings Katherine Myer
and Kenneth Chott-Olsen and their mother Sylvia Chott. At the
time of trial, Katherine was sixty-six years old and lived in
West Des Moines; Kenneth was seventy and lived in
Indianapolis, Indiana. Sylvia was ninety-four and lived in
Indianapolis as well. Sylvia had lived in Illinois for many
years and moved to West Des Moines in 2009 to be closer to
Katherine and her husband, Chuck. She moved to Indianapolis
in December 2017 after the events leading to this litigation.
2009 and September 2017, Katherine and Chuck helped take care
of Sylvia. They arranged for her to live in an apartment in
the same apartment complex Katherine and Chuck lived in.
Sylvia became dependent on Katherine and Chuck in 2016 after
she lost her driver's license and was diagnosed with
dementia or early Alzheimer's. She relied on Katherine
and Chuck to take her grocery shopping and otherwise help her
March 2010, Sylvia gave Katherine a durable power of
attorney. The power of attorney named Kenneth as an
alternate. It gave Katherine the authority to manage
Sylvia's finances and perform banking activities on
Syliva's behalf, including the power "to receive and
endorse checks and other negotiable paper, deposit and
withdraw funds (by check or withdrawal slips) that I now have
on deposit or to which I may be entitled in the future."
It directed Katherine to "exercise all powers in
[Sylvia's] best interest and for [Sylvia's]
welfare." Katherine was unaware of the power of attorney
until around 2015 and maintains she never used it. Katherine
testified at trial that she never paid Sylvia's bills.
Instead, she only kept track of Sylvia's bank account
online to make sure Sylvia had not accrued overdraft fees or
gave too much money to charity. Katherine emphasizes on
appeal that Sylvia was always protective of her finances and
did not want other people managing them for her.
transaction at issue here occurred on September 19, 2017.
Katherine testified Sylvia became worried about leaving her
family with a large bill from Medicaid if she had to go on
long-term care and insisted on giving some of her money to
Katherine and Kenneth. To that end, Katherine devised a plan
to transfer money from Sylvia's bank account to Kenneth
and herself. Katherine drafted a letter expressing
Sylvia's desire to transfer $29, 597.29 to Katherine
"for services rendered that allow [Sylvia] to continue
living apart from assisted care." Katherine calculated
the amount of compensation. On September 17, 2018, Katherine
and Sylvia went to Sylvia's bank, got the letter
notarized, and transferred the money to Katherine's bank
account. Katherine never consulted an attorney, accountant,
or financial professional about the prudence of making the
transfer or its effect on Sylvia's eligibility for
Medicaid if she went on long-term care before making the
and Sylvia did not discuss the transfer of funds at all until
Kenneth came to visit on October 10. Kenneth did not agree
with the decision to transfer the money and accused Katherine
of attempting to take Sylvia's money and put her in an
assisted living home. Sylvia did not speak to Katherine at
any point during the argument. The next day, Sylvia called
Katherine and asked her to return the money, which Sylvia
characterized as a gift. Katherine refused. She and Chuck had
given some of the money to their children and spent some of
it themselves. Katherine ended the call and went to
Sylvia's apartment, where she found Kenneth and Sylvia
waiting for her. Kenneth again accused Katherine of stealing
Sylvia's money. The two argued again, and Katherine left.
On October 12, Katherine and Chuck drafted a letter
relinquishing Katherine's power of attorney to Kenneth.
The letter noted Katherine "was responsible for
[Sylvia's] well-being, finances, and care-taking" up
until that day. Katherine and Chuck had the letter notarized
and delivered it to Sylvia the same day.
filed the petition on February 16, 2018, requesting review of
Katherine's actions as an agent ...