[WSBAPT] Capacity to sign POA

[susan at pepetersonlaw.com]

Hello again listmates,

PC has a validly executed POA from 2016 signed by his mother naming him AIF.
Client is attempting to rely on the POA sign the paperwork to sell her
house.  Mother is in assisted living and her house was within weeks of being
foreclosed upon.  A company that buys distressed properties like this has
been working with PC and they have a third party buyer.  The issue is that
the title company is declining to issue a policy because there is a letter
from a physician dated about three weeks before the POA that states that the
mother has been diagnosed with dementia and "is unable to make decisions for
herself."  It is the title company's position that the letter demonstrates
that the mother was incompetent to sign the POA.  I have always believed
that, if the client understands what they are signing (can tell you what the
document is, what it can be used for, and who they are appointing) that is
sufficient capacity to execute a POA.  By all accounts the mother fit that
description when she signed the POA 6 years ago.  Now, probably not.  The
insurers want a guardian/conservator to sign off on the documents.  I'd like
to avoid that for these folks if I can, the mother had a reverse mortgage
and is only likely to get about $20k from the sale. It seems a shame to
spend any of that on the expense of a guardianship.  Can any one point me to
caselaw or anything else I could use in my upcoming discussion with the
underwriting counsel regarding capacity needed to sign a POA?  Any other
ideas?

 

Susan E. Spuller

Attorney at Law

 

Peterson Spuller, PLLC

345 Knechtel Way NE, Suite 102

Bainbridge Island, WA 98110

206.855.9293

Fax: 206.678.0105

 

 

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