What Gets Your Spidey Sense Tingling?
If an older individual was brought to your law office by a non family member and they wanted to appoint the individual as POA for Property and Personal Care, would you be suspicious? Or what about if the request was to either change a will or to make a will, naming this individual as a beneficiary? Would you be concerned then; and if so, what can you do?
Would you be less worried if the older person wanted to appoint this individual for only Personal Care?
All of these scenarios lead me to the issue of capacity and whether the lawyers who are completing these documents do make a thorough determination whether capacity is evident at that time. This question of course excludes readers of this blog who practice within the estates bar and perhaps it is better directed to general practitioners.
In terms of elders with whom we work that have chosen to appoint non family members, we see a variety of situations including: those who have appointed the same person for both Personal Care and Finance; those who appointed more than one non family member for both POAs (usually friends) and those who have appointed non family only for Personal Care and a financial institution or PGT has been named for Finance. I am less suspicious and prefer when this latter option is in place, – however it seems it may not be the chosen route but rather the route defined post mediation/litigation. With our aging population and the rate of dementia anticipated, I wonder if there a place to review these options with our clients when drafting POA’s rather than after something has gone amiss. I welcome your feedback.
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