Can I Get in Trouble if My Wife is Embezzling Money into Our Joint Account?

Full Question:

Just curious.I have discovered that my wife, acting as the execute of her mother's estate, is taking money from the estate without informing her 3 brothers (ages 45, 39, and 35). Two of the brothers are married and one is an award to the state.My question is this, I discovered she has deposited this money (at least $15,000 recently) in an a joint account with my name it. Again, I have NOT concentrated to this or was even aware.Can I get in trouble?
11/15/2009   |   Category: Fiduciary Duty   |   State: Michigan   |   #19616

Answer:

It is possible that a complaint may be filed against you based on the deposit to a joint account and/or knowledge of the wrong. Aiding and abetting generally means to somehow assist in the commission of a crime, or to be an accomplice. It involves a plan to commit a crime or to commit acts, the probable consequences of which are criminal.

An accomplice may assist or encourage the main offender with the same intent to have the crime committed, but does not necessarily have to be present when the crime is actually committed. However, without sharing the criminal intent, one who is merely present when a crime occurs and stands by silently is not an accomplice, regardless of the harm that could've been prevented if he/she had acted.

Fiduciaries owe two main duties to their clients: a duty of loyalty and a duty of care. The duty of loyalty requires that fiduciaries act solely in the interest of their clients, rather than in their own interest. Thus fiduciaries must not derive any direct or indirect profit from their position, and must avoid potential conflicts of interest. The duty of care requires that fiduciaries perform their functions with a high level of competence and thoroughness, in accordance with industry standards.

The elements of a cause of action for breach of fiduciary duty are:

(1) Plaintiff and Defendant share a relationship whereby:

(a) Plaintiff reposes trust and confidence in Defendant, and

(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or
protect Plaintiff;

(2) Defendant breaches its duties to Plaintiff; and

(3) Plaintiff suffers damages.

The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.

Affirmative defenses to a claim for breach of fiduciary duty can include, but are not limited to:

(1) The passing of the statute of limitations for filing the claim.

(2) Lack of fiduciary relationship (for example, when the parties did not enter a fiduciary relationship, but rather conducted business in an arm’s length transaction there is no duty to protect the other party or disclose facts which the other party could have discovered by its own diligence.)

(3) Lack of standing

(4) Approval (for example, if the alleged actions followed full disclosure to and the consent of the Plaintiff)

(5) Business judgment rule (ex. that the corporate fiduciary's actions were motivated by a bona fide interest in the well being of the corporation where shareholders are the ones owed the fiduciary duty)

(6) Due diligence was exercised

Please see the following MI statutes to determine applicability:

750.535 Buying, receiving, possessing, concealing, or aiding in
concealment of stolen, embezzled, or converted property or motor
vehicle; violation; penalty; rebuttable presumption; enhanced sentence
based on prior convictions; prohibited defense.

Sec. 535.

(1) A person shall not buy, receive, possess, conceal, or aid in the
concealment of stolen, embezzled, or converted money, goods, or property
knowing, or having reason to know or reason to believe, that the money,
goods, or property is stolen, embezzled, or converted.

(2) If any of the following apply, a person who violates subsection (1)
is guilty of a felony punishable by imprisonment for not more than 10
years or a fine of not more than $15,000.00 or 3 times the value of the
property purchased, received, possessed, or concealed, whichever is
greater, or both imprisonment and a fine:

(a) The property purchased, received, possessed, or concealed has
a value of $20,000.00 or more.

(b) The property purchased, received, possessed, or concealed has a
value of $1,000.00 or more but less than $20,000.00, and the person has 2
or more prior convictions for committing or attempting to commit an
offense under this section. For purposes of this subdivision, however, a
prior conviction does not include a conviction for a violation or
attempted violation of subsection (4)(b) or (5).

(3) If any of the following apply, a person who violates subsection (1)
is guilty of a felony punishable by imprisonment for not more than 5
years or a fine of not more than $10,000.00 or 3 times the value of the
property purchased, received, possessed, or concealed, whichever is
greater, or both imprisonment and a fine:

(a) The property purchased, received, possessed, or concealed has
a value of $1,000.00 or more but less than $20,000.00.

(b) The property purchased, received, possessed, or concealed has a
value of $200.00 or more but less than $1,000.00, and the person has 1 or
more prior convictions for committing or attempting to commit an offense
under this section. For purposes of this subdivision, however, a prior
conviction does not include a conviction for a violation or attempted
violation of subsection (4)(b) or (5).

(4) If any of the following apply, a person who violates subsection (1)
is guilty of a misdemeanor punishable by imprisonment for not more than 1
year or a fine of not more than $2,000.00 or 3 times the value of the
property purchased, received, possessed, or concealed, whichever is
greater, or both imprisonment and a fine:

(a) The property purchased, received, possessed, or concealed has
a value of $200.00 or more but less than $1,000.00.

(b) The property purchased, received, possessed, or concealed has a
value of less than $200.00, and the person has 1 or more prior
convictions for committing or attempting to commit an offense under this
section or a local ordinance substantially corresponding to this
section.

(5) If the property purchased, received, possessed, or concealed has a
value of less than $200.00, a person who violates subsection (1) is
guilty of a misdemeanor punishable by imprisonment for not more than 93
days or a fine of not more than $500.00 or 3 times the value of the
property purchased, received, possessed, or concealed, whichever is
greater, or both imprisonment and a fine.

(6) The values of property purchased, received, possessed, or concealed
in separate incidents pursuant to a scheme or course of conduct within
any 12-month period may be aggregated to determine the total value of
property purchased, received, possessed, or concealed.

(7) A person shall not buy, receive, possess, conceal, or aid in the
concealment of a stolen motor vehicle knowing, or having reason to know
or reason to believe, that the motor vehicle is stolen, embezzled, or
converted. A person who violates this subsection is guilty of a felony
punishable by imprisonment for not more than 5 years or a fine of not more
than $10,000.00 or 3 times the value of the motor vehicle purchased,
received, possessed, or concealed, whichever is greater, or both
imprisonment and a fine. A person who is charged with, convicted of, or
punished for a violation of this subsection shall not be convicted of or
punished for a violation of another provision of this section arising from
the purchase, receipt, possession, concealment, or aiding in the
concealment of the same motor vehicle. This subsection does not prohibit
the person from being charged, convicted, or punished under any other
applicable law.

(8) If the prosecuting attorney intends to seek an enhanced sentence
based upon the defendant having 1 or more prior convictions, the
prosecuting attorney shall include on the complaint and information a
statement listing the prior conviction or convictions. The existence of
the defendant's prior conviction or convictions shall be determined by
the court, without a jury, at sentencing or at a separate hearing for
that purpose before sentencing. The existence of a prior conviction may
be established by any evidence relevant for that purpose, including, but
not limited to, 1 or more of the following:

(a) A copy of the judgment of conviction.

(b) A transcript of a prior trial, plea-taking, or sentencing.

(c) Information contained in a presentence report.

(d) The defendant's statement.

(9) A person who is a dealer in or collector of merchandise or personal
property, or the agent, employee, or representative of a dealer or
collector of merchandise or personal property who fails to reasonably
inquire whether the person selling or delivering the stolen, embezzled,
or converted property to the dealer or collector has a legal right to do
so or who buys or receives stolen, embezzled, or converted property that
has a registration, serial, or other identifying number altered or
obliterated on an external surface of the property, is presumed to have
bought or received the property knowing the property is stolen,
embezzled, or converted. This presumption is rebuttable.

(10) If the sentence for a conviction under this section is enhanced by
1 or more prior convictions, those prior convictions shall not be used to
further enhance the sentence for the conviction pursuant to section 10,
11, or 12 of chapter IX of the code of criminal procedure, 1927 PA 175,
MCL 769.10, 769.11, and 769.12.

(11) It is not a defense to a charge under this section that the
property was not stolen, embezzled, or converted property at the time of
the violation if the property was explicitly represented to the accused
person as being stolen, embezzled, or converted property.

750.174a Person in relationship of trust with vulnerable adult;
prohibited conduct; violation; penalty; enhanced sentence; exceptions;
definitions; report by office of services to the aging to family
independence agency.

Sec. 174a.

(1) A person shall not through fraud, deceit, misrepresentation,
coercion, or unjust enrichment obtain or use or attempt to obtain or use
a vulnerable adult's money or property to directly or indirectly benefit
that person knowing or having reason to know the vulnerable adult is a
vulnerable adult.

(2) If the money or property used or obtained, or attempted to be used
or obtained, has a value of less than $200.00, the person is guilty of a
misdemeanor punishable by imprisonment for not more than 93 days or a
fine of not more than $500.00 or 3 times the value of the money or
property used or obtained or attempted to be used or obtained, whichever
is greater, or both imprisonment and a fine.

(3) If any of the following apply, the person is guilty of a
misdemeanor punishable by imprisonment for not more than 1 year or a fine
of not more than $2,000.00 or 3 times the value of the money or property
used or obtained or attempted to be used or obtained, whichever is
greater, or both imprisonment and a fine:

(a) The money or property used or obtained, or attempted to be used or
obtained, has a value of $200.00 or more but less than $1,000.00.

(b) The person violates subsection (2) and has 1 or more prior
convictions for committing or attempting to commit an offense under this
section.

(4) If any of the following apply, the person is guilty of a felony
punishable by imprisonment for not more than 5 years or a fine of not more
than $10,000.00 or 3 times the value of the money or property used or
obtained or attempted to be used or obtained, whichever is greater, or
both imprisonment and a fine:

(a) The money or property used or obtained, or attempted to be
used or obtained, has a value of $1,000.00 or more but less than
$20,000.00.

(b) The person violates subsection (3)(a) and has 1 or more prior
convictions for committing or attempting to commit an offense under this
section. For purposes of this subdivision, however, a prior conviction
does not include a conviction for a violation or attempted violation of
subsection (2) or (3)(b).

(5) If any of the following apply, the person is guilty of a felony
punishable by imprisonment for not more than 10 years or a fine of not
more than $15,000.00 or 3 times the value of the money or property used
or obtained or attempted to be used or obtained, whichever is greater, or
both imprisonment and a fine:

(a) The money or property used or obtained, or attempted to be
used or obtained, has a value of $20,000.00 or more.

(b) The person violates subsection (4)(a) and has 2 or more prior
convictions for committing or attempting to commit an offense under this
section. For purposes of this subdivision, however, a prior conviction
does not include a conviction for a violation or attempted violation of
subsection (2) or (3)(b).

(6) Except as otherwise provided in this subsection, the values of
money or property used or obtained or attempted to be used or obtained in
separate incidents pursuant to a scheme or course of conduct within any
12-month period may be aggregated to determine the total value of money
or personal property used or obtained or attempted to be used or
obtained. If the scheme or course of conduct is directed against only 1
person, no time limit applies to aggregation under this subsection.

(7) If the prosecuting attorney intends to seek an enhanced sentence
based upon the defendant having 1 or more prior convictions, the
prosecuting attorney shall include on the complaint and information a
statement listing the prior conviction or convictions. The existence of
the defendant's prior conviction or convictions shall be determined by
the court, without a jury, at sentencing or at a separate hearing for
that purpose before sentencing. The existence of a prior conviction may
be established by any evidence relevant for that purpose, including, but
not limited to, 1 or more of the following:

(a) A copy of the judgment of conviction.

(b) A transcript of a prior trial, plea-taking, or sentencing.

(c) Information contained in a presentence report.

(d) The defendant's statement.

(8) If the sentence for a conviction under this section is enhanced by
1 or more prior convictions, those prior convictions shall not be used to
further enhance the sentence for the conviction under section 10, 11, or
12 of chapter IX of the code of criminal procedure, 1927 PA 175, MCL
769.10, 769.11, and 769.12.

(9) A financial institution or a broker or a director, officer,
employee, or agent of a financial institution or broker is not in
violation of this section while performing duties in the normal course of
business of a financial institution or broker or a director, officer,
employee, or agent of a financial institution or broker.

(10) This section does not prohibit a person from being charged
with, convicted of, or punished for any other violation of law the
person commits while violating this section.

(11) As used in this section:

(a) "Broker" means that term as defined in section 8102 of the
uniform commercial code, 1962 PA 174, MCL 440.8102.

(b) "Financial institution" means a bank, credit union, saving
bank, or a savings and loan chartered under state or federal law
or an affiliate of a bank, credit union, saving bank, or savings
and loan chartered under state or federal law.

(c) "Vulnerable adult" means that term as defined in section 145m,
whether or not the individual has been determined by the court to
be incapacitated.

(12) If the office of services to the aging becomes aware of a
violation of this section, the office of services to the aging shall
promptly report the violation to the family independence agency.