Posted by Tapatia12683 on 1/3/10 4:20pm
Msg #316496
Durable Power of Attorney
I have a client who asked for a durable power of attorney for her aunt. Her aunt suffers from Alzheimer's and would obviously not be conscious of what she would be signing. She needs this power of attorney to handle small financial issues. What can I do in this case?
|
Reply by John_NorCal on 1/3/10 4:27pm
Msg #316498
Best bet would be to refer her to an attorney who specializes in elder care. That is the only recommendation that you can legally make, you may not provide any kind of legal documentation to her unless you are an attorney.
|
Reply by Robert/FL on 1/3/10 4:27pm
Msg #316499
This is an unfortunate situation and I have come across it several times. You must refuse to notarize.
I would also advise the client that the document can not be notarized by *ANY* notary to prevent her from seeking others. You may want to explain to her that an acknowledgment requires an indication by the signer that she has signed the document voluntarily and understands its contents. Since the aunt is unable to make that indication she can not acknowledge her signature on the document.
Advise your client to contact an attorney to get legal guardianship over her aunt.
|
Reply by Tapatia12683 on 1/3/10 4:36pm
Msg #316501
Thank you very much for this helpful information!
|
Reply by BrendaTx on 1/3/10 4:42pm
Msg #316503
Yep...agree with John & Robert. It's
too late for POA and time for doing a guardianship...at least that's what it sounds like for Texas.
|
Reply by LKT/CA on 1/3/10 5:52pm
Msg #316511
<<<She needs this power of attorney to handle small financial issues.>>>
I am finding more and more that financial institutions want their own specific POA forms notarized and are rejecting even attorney drawn POAs. Whatever financial institution the aunt does business with, the niece needs to find out from THEM what they require, as far as POAs go. Recently, I notarized signatures on bank specific POA's at a hospital for a patient and his wife because - according to the wife - the bank rejected their attorney drawn POA because the bank's legal department was not satisfied with its wording. Therefore, she had to have bank specific POAs. Needless to say, she was quite angry at the bank because she and hubby had their attorney take care of all of that (POA's, trusts, healthcare directives, wills, etc.) years ago and the bank was now telling her that the attorney drawn POA was useless to THEM. She wanted her signatures notarized too, on everything, even though the forms only called for the husband's signature to be notarized. She said she was not taking any chances because the bank already put her through too much over this. These two banks she's dealing with are two that everyone knows.
Other Notaries may have different experiences, but this has been my recent (last 3 months) experience notarizing POA's - the financial institution legal departments are not just rejecting generic, office supply store package Durable POA's but attorney drawn POAs too. They seem to only accept theirs, these days.
|
Reply by MrEd_Ca on 1/3/10 6:12pm
Msg #316514
Re: Durable Power of Attorney....
I recently had a client who had a Wells Fargo specific POA to be signed by her elderly mother. The bank would not accept any other than they're own POA and they had her inspect my state commission too --- I brought it along in it's handsome & ornate frame. According to this client, her bank told her they were running into a lot of phony notaries ...maybe it's a California thing.
|
Reply by LKT/CA on 1/3/10 7:25pm
Msg #316521
Re: Durable Power of Attorney....
Phony notaries? YIKES !! Wonder if the various county recorders are bombarded with calls to verify if a notary is legit. I think it is time that the SOS put notary info online so people can verify a commission 24/7. It may look something like the following examples:
Name: Jane E Doe
Commission No.: 1234567
Status: Current
County of Record: Los Angeles
Valid Dates: 5/10/2008 to 5/9/2012
Notes: None
OR
Name: Jane E Doe
Commission No.: 1234567
Status: Expired
County of Record: Los Angeles
Valid Dates: 5/10/2004 to 5/9/2009
Notes: No renewal on record
Or
Name: Jane E Doe
Commission No.: 1234567
Status: Revoked 10/31/2007
County of Record: Los Angeles
Valid Dates: 5/10/2004 to 5/9/2009
Notes: Violation of Govt. Codes AB12, CD14 and EF16
This way, notaries who try to use their seal after their commission expires or if it has been revoked can be exposed immediately at the SOS website and entering their name or commission number.
|
Reply by Notarysigner on 1/3/10 7:33pm
Msg #316523
Re: Durable Power of Attorney....
They find them on the phony notary website....pleazzz
|
Reply by Notarysigner on 1/3/10 6:48pm
Msg #316517
Same experience here regarding POA. I have been asking before from the client is it a bank POA form or other? No problems with the POA forms from the individual institutions. Aah so far.
|
Reply by Robert/FL on 1/3/10 7:02pm
Msg #316520
They should have gotten the POA
BEFORE the aunt's Alzheimer's got severe enough that she couldn't understand what she was signing.
And banks have no right to ask for an additional POA, IMO - if the principal signed a POA for their son/daughter 20 years ago, and the principal is now incompetent, she can not sign another POA.
|
Reply by PAW on 1/3/10 7:33pm
Msg #316522
Statement from the Florida Bar ...
Q. What if the third party will not accept the Power of Attorney?
A. If the Power of Attorney was lawfully executed and it has not been revoked, suspended or terminated, third parties may be forced to honor the document. Due to changes in the law, Durable Powers of Attorney executed on or after October 1, 1995, are provided special enforcement authorizations. An older document may be enforced as well. Under some circumstances, if the third party’s refusal to honor the Durable Power of Attorney causes damage, the third party may be liable for those damages and even attorney’s fees and court costs. Even mere delay may cause damage and this too may be actionable. It is reasonable, however, for the third party to have the time to consult with a lawyer about the Power of Attorney. Banks will often send the Power of Attorney to their legal department for approval. Delay for more than a short period may be unreasonable. Upon refusal or unreasonable delay, consult an attorney.
(Source: Florida Bar's Consumer Pamphlet: Florida Powers of Attorney, pg7-8. A copy can be viewed/downloaded at http://www.pawnotary.com/documents/Florida%20Powers%20of%20Attorney.pdf)
|
Reply by DD/OR on 1/3/10 8:25pm
Msg #316527
Your client can go to court herself and ask a judge to grant her POA. She just needs to show proof that her aunt is incapable of handling her own affairs. DD
|
Reply by Linda_H/FL on 1/3/10 8:30pm
Msg #316528
Then it would be a guardianship or a conservatorship
but no longer a POA...
Not sure how it would work in CA, but in FL (at least Columbia County) the petitioner MUST be represented by an attorney and all paperwork to the court must submitted through the attorney.
By the way, I'm sure we all realize this is a test question?
|
Reply by BrendaTx on 1/3/10 9:41pm
Msg #316532
Re: Then it would be a guardianship or a conservatorship
No, I didn't Linda...but I'll bet you're right!
|
Reply by LKT/CA on 1/3/10 10:43pm
Msg #316534
Re: Then it would be a guardianship or a conservatorship
<<<By the way, I'm sure we all realize this is a test question?>>>
No, I don't think so...this area (Alzheimers) is too gray to be a test question. Most won't touch notarizing for an Alzheimer patient - yet I've had three attorneys say that it is NOT cut and dry, that Alzheimer patient's can have times of clarity. I only bring this up to say I doubt the OP's inquiry is a test question. I did NOT bring it up to start a debate.
|
Reply by BrendaTx on 1/4/10 6:51am
Msg #316535
Re: Then it would be a guardianship or a conservatorship
LOL "I did NOT bring it up to start a debate." Doesn't matter. Anything's fair game once it's posted! Can't control what happens after something's posted...it just takes off with a life of its own.
And, as far as Alzheimers being a gray area, when has that ever stopped a signing service or "certifying agency" from getting off into something that has no basis in reality? You're right about the gray area, but signing service owners who give tests aren't "qualified" by any authority to give such tests.
|
Reply by LKT/CA on 1/4/10 2:06pm
Msg #316588
Re: Then it would be a guardianship or a conservatorship
<<<Anything's fair game once it's posted! Can't control what happens after something's posted...it just takes off with a life of its own.>>>
I agree with you, Brenda, anything is fair game once it is posted. However, if MY intent on posting something is only informational (i.e. I did NOT bring it up to start a debate.), that just means *I* will not be engaging in any discussion regarding the "informational" statement. Everyone else is free to discuss it ad nauseum, if they so choose.
|
Reply by PAW on 1/4/10 7:12am
Msg #316536
Re: Then it would be a guardianship or a conservatorship
NH, MA, CT and FL work the same in this particular instance. (I submit that in many other jurisdictions it is the same.) The petitioner (e.g., those wanting to be the AIF or have one appointed), petitions the court for a hearing. The court will appoint a Guardian ad litem (a person who is appointed by the court to represent the best interest of a child or incompetent adult in any proceeding where the court deems it is necessary to appoint such a person) if the respondent does not have their own representation. The court may then issue a decree of Guardianship or Conservatorship, depending on the court and the powers being granted.
|
Reply by MistarellaFL on 1/4/10 7:54am
Msg #316540
Assess the signer's cognition
Many Alzheimer's patients are not always incognizant.
Some days they suffer with dementia, and some days they are well aware of EVERYTHING.
The disease affects everyone differently, so my best advice would be to have a little one-on-one time with the signer. See if the aunt understands what she is signing, have her tell you what the DPOA is for. She might be having a cognizant day, and IMO, if she comprehends, she is able to sign.
JMHO and experience as a former geriatric nurse.
|
