Accepting Durable Power of Attorney, Serving as Executor

January 21, 2000

CJE Opinion No. 2000-2

You request the Committee's advice as to whether you may be given a durable power of attorney by your wife's uncle, and, also, whether you may serve as co-executor of his will. With the exception of her sister, your wife is his sole living relative. However, neither your wife nor the uncle has regular contact with your wife's sister. The uncle is an eighty-five year old retired physician who never married and has lived all his life in another state. You have known him since before your marriage (in 1965) and refer to him as "Uncle Ben." When in the company of others, he will refer to you as his nephew. Since the late 1960's, you, your wife, and son have regularly visited him, including on Thanksgiving and Christmas. When traveling, he would keep you apprised of his itinerary and would often visit you at your home in Massachusetts. On such visits, he was also entertained by your parents who have known him well over the years since 1965. When you were sworn in as a judge, the uncle flew here to stay with you and attended your swearing in, standing with your immediate family aside the Governor during the ceremony.

You further state that your sister, who also lives in the same state as the uncle, has developed a close personal relationship with him. He treats her as a niece and visits her home regularly for dinner. She currently has a health care proxy designation from him. She and her husband have also assisted him in moving to a new residence with assisted living facilities.

During the thirty-five years of your relationship, the uncle has talked to you about personal, family, professional and business matters. In doing so, he has stated that he has confidence in your judgment, discretion and advice. On occasion, his attorney, with the uncle's knowledge, has called you to seek your assistance in facilitating decisions on estate planning matters. After you became a judge, your personal communications with the uncle continued by telephone, letter and in person about diverse matters of personal business, including the renewal of leases, the need for estate planning reviews, and the question of whether to move into a supervised health care facility. At all times, he has had his own attorney. Your involvement has been to listen, explain options, and, if requested, to suggest a resolution or decision. For example, when he was recovering from hip surgery several years ago, you discussed with him where he should go for residential physical therapy and related matters. Within the last month, his attorney, with the uncle's knowledge, called you to explain the need for immediate decisions on important tax, personal finance and estate planning matters. Your input helped facilitate the resolution of those matters. As part of that resolution, the uncle is asking that you and his attorney have a durable power of attorney and that you be listed as a co-executor of his will.

Canon 5(D) of the Code of Judicial Conduct provides that a judge may not serve as an executor or other fiduciary "except for the estate, trust, or person of a member of his family, and then only if such service will not interfere with the proper performance of his judicial duties." Family is defined to include "a spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial relationship." In view of other provisions in the Code, we conclude that "relative" would encompass persons related to the judge by marriage. For example, the provision requiring a judge to disqualify himself because of a familial relationship refers to relatives of the judge or his spouse. See Canon 3(C)(1)(d). Similarly, in the provisions restricting a judge's financial activities, "member of [a judge's] family residing in his household" is defined to include "any relative of a judge by blood or marriage." See Canon 5(C)(5). Be it by blood or by marriage, the "factors indicative of a close familial relationship . . . include: '(1) intimacy of address, (2) recognition by others of a close relationship, (3) shared meals, (4) frequent contact either by phone or in-person, (5) shared holidays, (6) shared family events, (7) assistance with physical, medical, legal or emotional needs, and (8) longevity [of the relationship].'" CJE Opinion No. 97-3, quoting In Re Horgos, 682 A.2d 447, 451-452 (Pa. Ct. Jud. Disc. 1996). As we stated in No. 97-3, "not every factor need be present for a close familial relationship to exist," but "a close familial relationship may exist when some of the factors outlined above are present and when the essence of the relationship is nurturing."

Applying the above considerations to the situation you present, we conclude that you have a close familial relationship with the uncle, and that you may accept the durable power of attorney and be listed as co-executor on his will. As outlined above, your relationship is a long standing one. Notwithstanding the distance between your residences, you have maintained regular contact over these years, seeing each other on holidays and important milestones. In view of the uncle's relationship with your sister, his contact with your parents, and the manner with which you address each other, any distinction between a relationship by blood or marriage, to the extent that any such distinction may be relevant, has ostensibly blurred to a considerable degree over the years. Moreover, you have come to play a significant role in the uncle's important decisions on personal and business matters, a role very analogous to that played by a son or daughter with a parent.

While you may serve in these capacities, we remind you that your financial activities with regard to your service are restricted to the same extent as your personal financial activities. Specifically,

- you must cease your service "if it is likely that . . . [you] will be engaged in proceedings that would ordinarily come before [you]" or if the uncle or his estate became "involved in adversary proceedings in the court on which [you] serve . . .," Canon 5(D)(1);

- you must "refrain from financial and business dealings that tend to reflect adversely on [your] impartiality, interfere with the proper performance of [your] judicial position, or involve [you] in frequent transactions with lawyers or persons likely to come before the court on which [you] serve . . .," Canon 5(C)(1);

- you may not "serve as an officer, director, manager, advisor, or employee of any business," Canon 5(C)(2); and

- you may not practice law, Canon 5(F).