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.