Is Both a Belt and Suspenders Really Needed?

by Audrey Miller on August 24, 2011

in Elder Care, Estate Planning, Power of Attorney


August 24, 2011; By: Pauline Morris
All About Estates

Pauline Morris, one of our social workers and a capacity assessor wrote today’s blog. A lawyer called asking about having his client assessed for Capacity to Manage Property. We decided that this kind of assessment wasn’t needed, and here’s why. The client, a 73-year-old man with lots of medical problems, was suing for compensation following a serious fall that resulted in broken bones and a concussion. The man had assigned both Power of Attorney for Personal Care and Continuing Power of Attorney for Property to his spouse, many years earlier. He was not challenging either one, and was cooperating totally with his lawyer and his wife; however, he clearly wasn’t operating ‘on all cylinders’. The lawyer wondered if the Judge in the Action might want a Capacity Assessment done. I suggested that he might ask his client to write a note, for the Court, saying that he was not well and wanted his spouse to speak on his behalf, using the CPOA and the Power of Attorney for Personal Care as confirmation that she has the right to do so. I also asked him to use medical expertise to determine the need for any litigation guardianship, as the Substitute Decisions Act really does not cover that area at all.

The lawyer thought that presenting the client’s Continuing Power of Attorney to the Court in a litigation settlement might imply that the client himself was not competent. I reminded him that the law always presumes capacity, and that a Continuing Power of Attorney is meant to underscore that: a document written while capable that persists in spite of incapacity and ensures that a chosen substitute decision-maker can still act if incapacity sets in.

Unless there is a specific condition written into the CPOA that limits its date of effectiveness, it does not require any kind of confirmation and takes effect immediately upon signing. In addition, the judge in the litigation hearing should not need to confirm, where no capacity assessment is needed to trigger the CPOA, that the grantor’s chosen decision-maker can act on his/her behalf. The moral of the story? You really don’t need a “belt and suspenders” approach when a Continuing Power of Attorney exists, and even if you do, a formal Capacity Assessment may not be the right tool. It can only answer one question: can the person both understand and appreciate the issues around making property decisions. If the assessment isn’t done under the precepts of the Substitute Decisions Act, it’s just another opinion.

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