Indictment of Fiduciary


From The Tucson Citizen, February 14, 1994

“A grand jury has indicted a Sun City lawyer on charges accusing him of stealing from a client’s estate.

David John Mason is scheduled to be arraigned … on five counts of theft.

It is the second indictment in the past seven months for Mason, 45.

On Aug. 23, he was indicted on a charge of fraud that accused him of stealing more than $140,000 from a dead woman’s estate and spending the money on taxes, landscaping and a 1966 Mustang convertible.

The latest indictment … accuses Mason of looting the estate of Mary Jane Luchetta, 53, who lives in a Phoenix-area nursing home.

Investigators for the Maricopa County Attorney’s Office allege Mason stole $80,250 from September 1989 to October 1992 by writing check from bank trust accounts set up for Luchetta.

Craig Mehrens, an attorney for Mason, said he could not comment yesterday on his client’s latest indictment because he hasn’t seen it.

Mason is free on bail.

The state Supreme Court on June 9 suspended Mason from practicing law pending the outcome of unspecified disciplinary charges against him.”

Other Recent Cases

The Mason case is just one of several similar cases in the past two years. A Tucson man was indicted in 1992 for his actions while serving as a fiduciary for several elderly Tucsonans, including one nursing home resident.

More recently, two Phoenix-area men were indicted after a Phoenix New Times article detailed a series of alleged misappropriations of funds from the estates of a number of elderly residents. One man was conservator for each of the alleged victims, and the other was his attorney in each case.

A Tucson attorney was indicted just last month for allegedly having taken her own mother’s funds using a power of attorney. And a Sierra Vista couple were the victims of another alleged series of thefts at the hands of their conservators, one of whom was their child.

These cases point out the importance of careful selection of fiduciaries, and monitoring of their behavior. While some of the alleged thefts were by family members, two were by professional fiduciaries and three by attorneys. While most professional fiduciaries and attorneys are honest, careful selection is clearly required for the elderly who must rely on someone else to handle financial matters.

Q & A

Q: An elderly woman has been admitted to a nursing home with a terminal condition. Her family has told her that her stay is temporary, and has instructed the facility not to tell her about her condition or prognosis. What should the facility do?

A: Both the facility and the family need to remember that the patient should be in control of her care. If she is competent, her consent to the admission and her treatment must be “informed.” That requires that she be given all relevant information. Even if family members hold a power of attorney, she still has the power to make decisions, and must be consulted.

If the patient is not competent, her guardian has the legal power to make decisions without consulting her. Nonetheless, he should exercise that power sparingly, if at all.

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