Thursday, July 21, 2011

Power of Attorney -- When Can It be Signed?

    Our blog features the fictitious story of Aunt Gertrude and her niece Milly who serves as her attorney in fact through the power of attorney document. The question must be raised in each such situation -- Was Aunt Gertrude aware of what she was signing? Did Milly or the attorney thoroughly explain the document which she was signing? What were the circumstances surrounding the signing of the power of attorney document? We will address this last question first.

    Any person signing, also referred to executing, a legal document must be aware of what it is he or she is signing. The signing must also be completed freely without coercion or duress.

    If Aunt Gertrude went to visit an attorney whom she knew -- perhaps one who had done legal work for her in the past -- and she was comfortable with the attorney, it is more likely that she will be willing to ask questions. Aunt Gertrude would feel more at ease with the surroundings...she’s been in this office before. The personal comfort level matters.

    Conversely, if her niece Milly takes Aunt Gertrude to an attorney who she does not know, and to an office in a part of town with which she is not familiar, she will be less comfortable. Aunt Gertrude will be less likely to ask questions. She is ‘out of her element’ and more fearful. She is less likely to ask questions.

    It is the attorney’s job to be sure that Aunt Gertrude has the mental capacity to sign the power of attorney document. The attorney must “take stock” of Aunt Gertrude’s mental capacity.  It is the attorney’s duty to be sure that Aunt Gertrude is properly aware of her surroundings and knows the time in which she is living. Most importantly, the attorney must be sure that Aunt Gertrude is aware of the consequences of executing a power of attorney document.

    If the attorney is not convinced that Aunt Gertrude is not aware of her surroundings or the time in which she lives, he or she is duty bound not to execute the document. If the attorney is not convinced that Aunt Gertrude understands the consequences of signing a power of attorney document, he or she is equally duty bound not to execute the document.

    It is important to remember, whether you are taking your Aunt Gertrude to sign a power of attorney document, or you are the one who is appointing an attorney in fact to act on your behalf, don’t sign anything that you do not understand. Don’t sign anything with which you are uncomfortable or that makes you fearful of losing control. 

    Follow us as we provide suggestions to help protect you and your loved ones from the many abuses of  the power of document.

Wednesday, July 13, 2011

Power of Attorney -- “Can She Do That?”

 
    “The best thing for Aunt Gertrude would be to have someone help her, to look out for her, you know. . .help her with her check book and what not.” This comment, or one like it, is often what you hear at a family gathering after dear Aunt Gertrude toddles past with her walker or leaning on her cane. With the Fourth of July just past, you may have been a part of a similar conversation.

    So Aunt Gertrude appoints her dear niece Milly as her attorney-in-fact, often referred to as her power of attorney. Milly’s attorney drafts a standard power of attorney document at her office. The attorney spends a minimal amount of time with Milly and Aunt Gertrude, in fact this is the first time she ever even met Aunt Gertrude, though she has known Milly for years.  Aunt Gertrude doesn’t ask any questions of Milly’s attorney. She isn’t quite sure what a “power of attorney” is, but she feels very important sitting in this nice office with a female attorney. She feels like Milly must know all about such things.

    On the way home, Aunt Gertrude starts to look over this very important paper she has signed. It must be important, because the attorney gave one to Milly, too.  She’s not exactly sure what “Expressly limiting the duration of a power” means, or what “renouncing a fiduciary position” could have to do with her.  But Milly is taking care of her.

    Now -- hit the Fast Forward button on this story. Sometime, perhaps six months or six years into the future. . .

    “I would like to make a withdrawal please,” Milly says to the office administrator at Aunt Gertrude’s Bank. Milly slides the withdraw slip to the teller along with a copy of her power of attorney. The teller politely takes the papers from her. After making sure that everything is in order with her supervisor, the teller returns and asks

“How would you like this, in a cashier’s check?”
    “No,” responds Milly. “Please make it cash. Large bills.”

    After taking a moment to gather the funds, the teller counts out the withdrawal, one large bill at a time. “There you go, ten thousand dollars.”

    Milly pleasantly smiles and says, just before departing “Please don’t mention this to anyone from my family. I know some of them do their banking here.”

    “Don’t worry. We’re not allowed to discuss other people’s accounts with anyone unless they are on the account,” to which Milly responds “good.”

    This scenario plays out every single day, and that is no exaggeration. Aunt Gertrude doesn’t have a clue that Milly is taking her money, and no one in the bank has the power to stop her. She has the power of attorney document which was prepared by an attorney, signed by Aunt Gertrude, witnessed and properly notarized.    

    We call it Senior Citizen abuse without a scratch. We are trying to put as much information out as possible to help our caregivers and our senior citizens. Watch our Twitter account at “MarkMateya” for new resources to help prevent senior citizen financial abuse. And thank you for your stories. We’ll begin sharing some of your stories, of course with “Aunt Gertrude and her niece Milly” as our subjects.