So They Could Stay Together - The Importance of a Power of Attorney

So They Could Stay Together

The importance of a power of attorney

One day a realtor acquaintance, Bert, called me from the home of an elderly couple, Hank and Martha Smith, who had contacted him about selling their house to move into a nearby senior living facility. They needed the money from their house to afford that. During the meeting, Bert realized Martha did not understand the conversation. When he had a chance to pull Hank aside, he asked him if Martha was capable of signing a listing contract. Hank admitted Martha had Alzheimer’s disease, but he assumed he could sign everything for both of them since he had no trouble signing his name on checks for their joint checking account and the house was in joint names.  Bert explained to Hank that he could not sign documents on Martha’s behalf to sell their house without a POA.

Hank sighed and said, "We’ve been married for 60 years and have never lived apart, but Martha needs specialized care soon. I can’t take care of her myself, as much as I want to do so. We need to sell our home, so we can stay together and she can get the care she needs."

Bert wanted to help this nice couple sell their house and knew they needed legal help so he called me from their house. After explaining the situation to me, Bert put Hank on the phone. I told Hank I could help them so he made an appointment.

When we met, Hank asked me if I could prepare a POA for this wife to sign. I explained in order for a POA to be valid, a person must have the mental capacity to fully understand what it means to grant someone the power to sign legal documents for her, including those needed to sell her property. This is known as being legally competent. A person who is not legally competent cannot make a valid power of attorney, and it is ethically improper for an attorney to knowingly facilitate this.

I told Hank about the several instances in the past when I declined to prepare POAs because I believed the person did not have the necessary mental capacity, but if Hank believed Martha was competent, he could ask her doctor to write a letter stating this and then I could prepare the POA.  Hank said that he knew Martha's mind was too confused to understand things. He then asked me what he could do.

I explained, "You could be appointed guardian for Martha but for that to happen you will have to...read more

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