[WSBAPT] Power of Attorney; Power to Contract.

[Eric Nelsen]

So far as I am aware, the only way an adult's capacity to contract can be
prospectively removed is by adjudication in a guardianship. Of course an
individual contract can be challenged retrospectively on the basis that
the individual did not have capacity at the time of signing.

 

So, I don't understand why Division III would phrase it that way--the
trigger for a springing POA is not a per se removal of the principal's
capacity to contract.

 

Of course, the doctor's opinion is evidence of incapacity. But the court
would still have to rule that the principal was incompetent at the time
the nursing home contract was signed, on the basis of the medical
evidence, not the POA.

 

Sincerely,

 

Eric

 

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1320 University St

Seattle WA  98101-2837

phone 206-625-0092

fax 206-625-9040

 

 

 

From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Doug Schafer
Sent: Thursday, January 30, 2014 11:04 AM
To: WSBA RPPT Probate & Trust Discussion Forum
Subject: [WSBAPT] Power of Attorney; Power to Contract.

 

Colleagues:

On page 11 of the below unpublished opinion, COA Div. III remanded a
nursing home wrongful death lawsuit for the trial court to decide several
issues, including "whether [decedent] Mr. Coon's power of attorney
precluded him from contracting with Franklin Hills [nursing home]." Mr.
Coons had signed an arbitration agreement when admitted to the facility.



Jan. 30, 2014 - 31055-8 - Mary Rushing, et al v. Franklin Hills Health &
Rehabilitation Center, et al      
http://www.courts.wa.gov/opinions/?fa=inions.disp
<ttp://www.courts.wa.gov/opinions/?fa=inions.disp&filename10558MAJ%22>
&filename10558MAJ

I've never before seen it suggested that by signing a power of attorney a
principal might lose their power to contract.  I've never thought that
persons could voluntarily relinquish their right/power to contract -- by
signing a POA or anything else (i.e., I declare that I lack contractual
capacity!)

My impression is that guardianships often are initiated specifically
because the AIP's previously signed POA cannot shield him/her from
contracting with predators, so a court order abrogating their right/power
to contract is sought.

Are there any sound arguments that a person could lose their right/power
to contract by signing a POA?

Doug Schafer, in Tacoma.

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