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What is the level of competency required for a person to execute a power of
attorney? Would an 80-something year old three weeks after a stroke be
considered competent enough to execute a PoA? How do attorneys-at-law
determine if a person is competent enough to execute a legal document?
Thank you.
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On Sun, 03 Oct 2004, luvlibelle1@aol.com (Luvlibelle1) wrote in
misc.legal moderated:
What is the level of competency required
for a person to execute a power of attorney?
A mental conceptual level sufficient to understand the indentity of
the agent being appointed and generally the nature of the authority
being conferred, which is generally (rebuttably) presumed, and there
is also a lack of physical circumstances of the principal and of
acts/behaviors by others sufficient to overcome a presumption of lack
of coercion or duress or fraud or other wrongful overreaching by the
(putative) agent or by a third-party.
Would an 80-something year old three weeks
after a stroke be considered competent enough
to execute a PoA?
Yes, if the 80-something year old at issue has a mental conceptual
level sufficient to understand the indentity of the agent being
appointed and generally the nature of the authority being conferred
and there is also a lack of physical circumstances of that person and
of acts/behaviors by others sufficient to overcome a presumption of
lack of coercion and duress or fraud or other wrongful overreaching by
the (putative) agent or by a third-party, but not if s/he lacks a
mental conceptual level sufficient to understand the indentity of the
agent being appointed and generally the nature of the authority being
conferred or, by reason of some combination of the (putative)
principal's physical circumstances and acts/behaviors by others, a
presumption of lack of coercion and duress or fraud or other wrongful
overreaching by the (putative) agent or by a third-party is rebutted.
How do attorneys-at-law determine if
a person is competent enough to execute
a legal document?
By whatever is the situation-specific practically feasible combination
of asking the principal, of evaluating circumstances such as those
referred to above, of consulting experts if warranted, of use (or,
perhaps, a deliberate decision not to use) technological devices
(e.g., video tape).
Related questions this question might raise in some cases are why the
question is being asked and by whom in light of the reasons advanced
in favor of concluding that the resulting power-of-attorney ought be
treated and relied on as valid even if someone might try to argue that
the principal was not competent to make a valid such power.
In other words, it depends . . . .
..
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"Luvlibelle1" <luvlibelle1@aol.com> wrote in misc.legal.moderated:
What is the level of competency required for a person to execute a power of
attorney? Would an 80-something year old three weeks after a stroke be
considered competent enough to execute a PoA?
As so often in the law, the answer is "it depends." Some strokes
leave a person relatively unaffected; some result in temporary
paralysis but the mind is undimmed; others have effects on the
person's intellect.
How do attorneys-at-law
determine if a person is competent enough to execute a legal document?
Attorneys don't; judges do, but only if it's questioned. If there's
likely to be any question, make sure you have a couple of credible
witnesses when the person signs the power of attorney. He should
state briefly in his own words what he's signing and that he's
giving N.N. the power to act for him in all matters; then if the PoA
is questioned the witnesses will be able to testify that he seemed
to be of sound mind and not under duress.
Credible witnesses would not include those who have something to
gain by seeing the PoA executed. A powerful witness might be the
person's doctor, if s/he is still hospitalized or under care.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
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What is the level of competency required for a person to execute a power
of
attorney? Would an 80-something year old three weeks after a stroke be
considered competent enough to execute a PoA? How do attorneys-at-law
determine if a person is competent enough to execute a legal document?
Thank you.
If I were the attorney involved, I would make certain that the person
signing the document fully understood all aspects of it by questioning the
principal thoroughly, and making sure that said person understood all of its
terms. If the principal clearly does not understand the POA, the notary
should not notarize the principal signature.
Frank J. Rozanc
Ohio Attorney
f_rozanc@yahoo.com
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What is the level of competency required for a person to execute a power of
attorney? Would an 80-something year old three weeks after a stroke be
considered competent enough to execute a PoA? How do attorneys-at-law
determine if a person is competent enough to execute a legal document?
I had a similar situation occur with my mother and I earlier this
year. My mother's physician was able to execute a document that
attested to my mother's level of competency, and thus a POA was
executed.
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What is the level of competency required for a person to execute a power of
attorney? Would an 80-something year old three weeks after a stroke be
considered competent enough to execute a PoA? How do attorneys-at-law
determine if a person is competent enough to execute a legal document?
Thank you.
A reasonably usable definition from the 'Lectric Law Library:
"...whether you have an understanding of the subject area covered by
the Power of Attorney, whether you understand the implications and
importance of the matters involved, and whether you can make and
communicate reasoned choices."
An 80-year-old person recovering from a stroke might well be competent
to sign a power of attorney. It depends very much on his or her
condition, especially as it's perceived by physicians and other
witnesses. If he or she is lucid and clearly comprehends what is going
on, he or she is likely to be competent.
There is also the possibility of undue influence. Even an otherwise
competent person might be so much under the control of another that
his or her actions cannot really be said to be his or her own. Some
states, such as Florida, have well-developed undue-influence law.
--
Not a lawyer; if this concerns a real situation, you need a real
lawyer,
Chris Green
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Frank Rozanc wrote:
If the principal clearly does not understand the POA, the notary
should not notarize the principal signature.
I question this statement, although it makes some sense in the
context of the original question. Notaries are not required
to verify the competency of the signatory, only that he or
she seems to be acting without visible coercion.
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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On Thu, 07 Oct 2004 17:16:18 -0400, "Arthur L. Rubin"
<ronnirubin@sprintmail.com> wrote:
Frank Rozanc wrote:
If the principal clearly does not understand the POA, the notary
should not notarize the principal signature.
I question this statement, although it makes some sense in the
context of the original question. Notaries are not required
to verify the competency of the signatory, only that he or
she seems to be acting without visible coercion.
That depends on the state.
Daniel Reitman
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Daniel R. Reitman wrote:
On Thu, 07 Oct 2004 17:16:18 -0400, "Arthur L. Rubin"
<ronnirubin@sprintmail.com> wrote:
If the principal clearly does not understand the POA, the notary
should not notarize the principal signature.
That depends on the state.
I acknowledge the possibility. However, no state requires
notaries to be TRAINED TO DETERMINE the competency of
the signatory. Furthermore, I have doubts that a notary
would be protected from liability for damages caused
by refusal to notarize a document for that reason.
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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