Posted by Lisa Cirillo on 8/6/13 8:21am
Msg #479356

Power of Attorney

I get a call last night. A young woman's father is in the hospital, probably won't be coming home. She wants me to notarize a power of attorney that he already signed. I say no, I'll come to the hospital, need id, and then I'll notarize. She says she has a video. Sends me the video and it shows her giving him a handwritten piece of paper as she explains to him "this is so I can take care of you, it's a power of attorney". She then has him sign this paper and hands him a checkbook and says "sign here, this is for the storage unit. Once I get this notarized, I'll be able to do this for you."

Wow, wrong on all levels, I tried explaining what a power of attorney is and what the proper form would be and that I can travel to the hospital. I seriously believe she is going to find a Notary who doesn't know any better and get this thing notarized. Do you think there is a bank that will honor such a thing? What is my next step?

I've contacted a friend who is an investigator for DSS. Waiting to hear from him when he can get to a landline. Any thoughts on this one......

Reply by MW/VA on 8/6/13 8:53am
Msg #479360

It's too bad that people in these situations don't know how

to go about getting a proper POA signed. Everyone is suspect in matters of POA, but it sounds like the daughter is trying to handle her father's affairs for him. Let's hope this isn't one of those situations where they look for an "online electronic notary".

Reply by Jack/AL on 8/6/13 8:55am
Msg #479361

I'd recommend that she start over by contacting an attorney for advice and creation of the paperwork for a power-of-attorney..

Reply by Lisa Cirillo on 8/6/13 9:01am
Msg #479366

I suggested they do that. No response. I really think they are going to try and do this without an attorney.

Reply by MW/VA on 8/6/13 8:56am
Msg #479362

Also, I'm not sure why you'd go to the extent of contacting

a "friend who is an investigator for DSS". It could be considered UPL.

Reply by Lisa Cirillo on 8/6/13 9:03am
Msg #479367

Re: Also, I'm not sure why you'd go to the extent of contacting

My concern is that an adult who may not be competent could be taken advantage of. If this man is in the hosptial, which was evident from the video, the hospital staff has Health Care Proxy's and has a social work department. They should go there and get advice on how to do this properly.

If you can, UPL - defininition please.

Reply by BobbiCT on 8/6/13 9:33am
Msg #479370

UPL fear

"I tried explaining what a power of attorney is and what the proper form would be ..."

I believe the UPL fear comes in when you posted you "tried EXPLAINING ...". I know you meant well; however, in MEAN "place the blame on someone" circumstances it could backfire on you. Future scenario: The person relies on what s/he THOUGHT you explained as "proper instructions for a valid power of attorney. "The first notary EXPLAINED what to do, so I did it and the second notary notarized it. I did NOT know the power of attorney was invalid. The first notary told me this would work."

The POA heads south and YOU get blamed for giving bad advice because the person is looking for someone to blame or sue. NOT to spread fear or worry, just a "be careful what you say" reminder. Think the pre-school whispering circle game and how what the last child repeats is never what the first child said.

Reply by MW/VA on 8/6/13 9:51am
Msg #479374

UPL is actually advising, preparing documents & charging

for those services. It's my understanding that Paralegals are allowed to do that in some states.
Your concern about his "competency" can only extend to your decision to notarize or not. I've done many POA's for people in hospitals & nursing facilities. They aren't 100% obviously, but the need for a POA didn't come up until they were in a position to need a family member to handle their affairs. There's often a short window to get that done. They have to be fully aware of what they're signing. ID & willingness & awareness are my tests for whether a person can sign & that signature be notarized. We can usually get a "feel" for the situation, and whether the person is being coerced to sign something & being taken advantage of. Those are judgement calls we need to make, but I wouldn't take it beyond my decision as a notary.

Reply by Lisa Cirillo on 8/6/13 10:22am
Msg #479375

Re: UPL is actually advising, preparing documents & charging

Thank you MW/VA for your information. Very helpful.

Reply by Belinda/CA on 8/6/13 11:47am
Msg #479379

Unauthorized Practice of Law = UPL n/m

Reply by Moneyman/TX on 8/6/13 1:35pm
Msg #479397

Maybe she can try ...

1) Checking with the hospital. Most hospitals will have a department that may offer her some guidance on obtaining a proper POA that will cover all the areas he would like for her to have control over. They may even have some generic versions? Some of the nursing homes in my area are equipped to provide such "standard" form docs for their clients.
(I'm not sure, but I believe that those specific sites may have an attorney on staff, or within the ownership of the facility to cover the UPL questions in that regard.)

or 2) Perhaps you can suggest she view LegalZoom (or a similar site) if she either doesn't want to involve an attorney, or may not have the finances at the moment to do so.

Reply by Moneyman/TX on 8/6/13 1:48pm
Msg #479402

Meant to add

I know that some box stores (Office Depot, OfficeMax, etc.) have sections that contain generic legal forms such as Wills and POA's, but personally, I do not ever suggest that people use those versions, especially in such time sensitive situations.

They claim to be "valid in all 50 states", however, an attorney friend of mine in my area who specializes in Elder Law, has pointed out that although they are generic enough, certain issues specific to a family may be overlooked, without realizing it. He also said that some of his own clients have encountered issues with using such form document type of Wills where the generic wording itself actually created certain legal issues, after the fact (e.g. care for disabled children left behind, blended family issues, adopted children verses wording that specifies something like "my children" or "children of the marriage", etc.)

Reply by ikando on 8/6/13 5:50pm
Msg #479426

Re: Maybe she can try ...

It's been my experience at hospitals and nursing homes, that the only documents they offer or will have their on-staff notary notarize are those which cover their business. Anything that has to do with issues outside of their facilities are not handled by their employees.

Oftentimes I get called with requests to provide POA forms for property and health (other than for the facility of residence), and I suggest they Google for Oklahoma-specific documents. There is a generic form from DHS that a lot of people find and use. I don't offer any suggestion except that they complete all information (names, addresses, etc.) before I come to notarize. Oftentimes they still have blanks when I get there, though.

Because I work with estate planning attorneys, I know where the line is for UPL, so I only offer generic information. If they want something more specific, I suggest they either do the best they can, or consider contacting one of the organizations that offer low cost legal services. Money always seems to be the issue at the time of these stressful situations, so I never leave without suggesting that the family members consider getting their own affairs in order soon.

Reply by Moneyman/TX on 8/13/13 12:13am
Msg #480269

That is 1 of the BEST things, imo, one can tell them ...

(them, being family members) in such a situation after offering other such advice as you mentioned for their original concerns, ikando!

>> Money always seems to be the issue at the time of these stressful situations,
*** so I never leave without suggesting that the family members consider getting their own affairs in order soon. *** <<

It may sound similar to an advertisement for an "ambulance chasing attorney" (which very few attorneys actually are), however, it is nothing more than a real necessity & a hard fact of life that may only become crystal clear to other family members in such moments.
===============================

As far as hospitals and nursing homes and documents they may be able to provide, overall, my experience has been about the same as yours. I just happen to have a few that call me [either no notary on staff or possibly they do not want any possible conflict of interest with an "on-staff" notary and patients (?) ] that do provide more detailed information. Again, I believe they are the exception, not the rule, and that they may be doing so because of their own special situations.

I forgot about the fact that some states have such specific information available. Great reminder, ikando.

Reply by Lisa Cirillo on 8/7/13 8:06am
Msg #479493

Re: Maybe she can try ...

Thank you, I did just that. I told her to check with the social work department of the facility and also to check with an attorney.