Durable Powers of Attorney – Part 2

September 21, 2004

Although this document starts with a bold faced warning, few read it, and those who do fail to understand its inherent legalese. In fact, it has been reported that many older principals sign their documents based only upon the limited information given to them by their “abuser agent”. It’s just too easy and perhaps too tempting for those who mean harm!

At present, the execution of a durable power of attorney is accomplished by the principals’s notarized signature. Would strengthening the execution requirements make more principals aware of what they are signing and dissuade would be abusers? Certainly the notary process is not taken as seriously as it perhaps should, many times, however, with the best of intentions. Would the process be improved if the notary faced a felony charge for not making the necessary inquiries as to the capacity of the principal to sign? What if the notary were personally liable for any financial loss incurred as a consequence of the misuse of a durable power of attorney, at least under circumstances where the documetn was notarized without the presence of the principal or signed by a clearly incompetent principal.

Would it be better if we required a durable power of attorney signing using the same formalities of a Will signing? Perhaps, but forging signatures and finding co-conspirators to witness the documents seems like an easy way to circumvent the good intention of increased formalities. If this latter point is true, increased execution requirements will likely not have an appreciable effect on such elder abuse.

What if all durable powers of attorney had to be prepared by attorneys? Certainly we would think that if a lawyer is involved in the process, such elder abuse would be caught in its tracks. But this is probably not the case in practice because of our zeal to help and our naive under-appreciation for the potential for abuse.

Next time we will illustrate this by looking at a common example in an Elder Law attorneys’s office.