Often, our Woodland hills clients ask us about preparing a power of attorney for their loved ones. Creation of a power of attorney requires capacity to contract. Most people do not know how to evaluate capacity to contract. We are here to make sure you do not make mistakes with your power of attorney and that things do not go wrong when a power of attorney is created. When you want to help your loved ones, and are not sure whether they have the capacity to contract, you should consider if others will think of you as an influencer.
What is capacity to contract?
Capacity to contract means knowing what you are signing, and being able to evaluate and have good judgment about the consequences of signing the document. In case of power of attorney documents, it means understanding what the agent can do with the power of document.
Who is an influencer?
An influencer can be a family member, or neighbor, or other person. While most influencers only have the best intentions, there are some that use their influence to take advantage of the elderly and disabled. In those circumstances, an power of attorney created with a person lacks capacity, or when he/she is unduly influenced to take an action which he/she would not normally take, and where the action gives benefit to someone else, then that power of attorney can be suspended or revoked by the court based on the elder’s inability to resist undue influence.
Not all influence is bad. When a power of attorney is created, but that it does not cause harm to the elder or the disabled, it is considered beneficial by the courts, and an alternative to a conservatorship.
Can you still prepare a power of attorney or is it too late?
Depending on the circumstances, there may be sufficient time to do a power of attorney. If you are unsure, it is best to have the elder examined for capacity. If you know that the elder does not have capacity, call us. We can help with a conservatorship or avoid one with a power of attorney, in the right circumstances.
Why consult an attorney about a power of attorney?
The reasons you should consult and attorney about a power of attorney are as follows:
- Avoiding the undue influence argument by others.
- Avoiding allegations of financial elder abuse.
- Getting advice about how to set up a power of attorney account.
- Getting advice about your duties as an agent under a power of attorney.
- Determining if additional steps need to be taken to help and aging or elder parent, such as a conservatorship to prevent the elder from acting in certain areas of life.
- Getting advice on setting up books and records for a power of attorney.
What can go wrong with a power of attorney?
A. Someone can claim you abused your power.
B. Someone can claim you stole the assets of the principal.
C. Someone can claim you mixed the assets of the principal with your own assets.
D. Someone can claim the power of attorney is invalid.
E. Someone can claim that the power should be suspended or revoked by the court.
Contact Mina Sirkin for help with all power of attorney questions. We assist clients in getting the best results with power of attorney documents in Woodland Hills, Glendale, Los Angeles, Tarzana, Sherman Oaks, Agoura, Winnetka, Capoga Park, Calabasas, Encino, North Hollywood, Pacoima, Panorama City, Granada Hills, Northridge, Chatsworth, Eagle Rock and Los Felis areas.
