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Mentally competent to sign POA?
Live2Learn
Posted: Thursday, July 19, 2018 3:28 PM
Joined: 7/17/2018
Posts: 1


New here...MIL is not officially diagnosed, but showing signs of dementia.  Who makes the determination if she is legally competent to sign POA?  We are trying to get her estate in order before she worsens.  Thanks in advance for any info.
mfg
Posted: Thursday, July 19, 2018 3:34 PM
Joined: 9/26/2013
Posts: 185


Our attorney asked my husband several questions. Asked him if he understood what we were there for and with each document asked him if he understood what it was for before signing it. It is their job to do this as they are also signing the documents stating that the person is of sound mind at time if signing. The notary is also doing the same.
jfkoc
Posted: Thursday, July 19, 2018 6:06 PM
Joined: 12/4/2011
Posts: 17458


I think it is up to the witnesses to decide to their own satisfaction before they sign off.
Misssy2
Posted: Thursday, July 19, 2018 7:31 PM
Joined: 12/14/2017
Posts: 1714


The ONLY person that can deem another person is not competent is a JUDGE.

The notaries and Attorneys are basically placing a seal on the document to verify that they "believed" that the person signing the document was "aware" of what they were signing at the time they signed the document.

I took my X's Mother in Law to a bank notary for her son to have access to financial documents and the POA was notarized for free by a bank notary. 

Even if you have a POA you need notarized which is not financial....you can go into your bank and ask your notary to be a witness.

 

Edited: In all honesty....If you need a paper signed NOW....pick a day that your LO is doing WELL...explain the paper ....fill it out together and get to the nearest bank and have it notarized...Simple 10 minute process...DONE.

It carries as much weight as if you go pay 350 dollars for a lawyer to sign it.


 

 


Rockym
Posted: Thursday, July 19, 2018 10:14 PM
Joined: 1/17/2016
Posts: 899


If she can write, she can sign.  I printed one off the internet for my state.  Mom and I talked about it (she was at the beginning of dementia perhaps stage 4) and we went to the bank.  We both signed, the notary signed and since we needed a witness, we pulled a lady from the bank line over to sign too.  That was it and it was legally binding until the day mom passed.
citydock2000
Posted: Friday, July 20, 2018 12:02 AM
Joined: 9/7/2017
Posts: 797


I think Missy asked in another thread - why a CELA attorney?  This is another good reason why.  

A licensed attorney is required to uphold specific ethical standards as a requirement to maintain a license.  This includes verifying competency to a specific standard - a attorney verified signature holds much more weight than a notary at a bank. 

For most people, this is a moot issue, since no one is challenging competency.  But it can come up - and this can be another reason to retain an attorney for signed paperwork. 

My MIL's attorney (MIL has MCI) is very very careful about what he tells her before he gets her signature on papers. He takes her understanding very seriously.  


jfkoc
Posted: Friday, July 20, 2018 11:28 AM
Joined: 12/4/2011
Posts: 17458


An online/signed at the bank DPOA/POA will  be far less likely to hold up under a challenge.


Rockym
Posted: Friday, July 20, 2018 11:37 AM
Joined: 1/17/2016
Posts: 899


No siblings, no challenges and no problems whatsoever (with the DPOA).  In fact, my bank, under my direction, added my DPOA so I could be a tad more legit.  Where they screwed up is that they deleted my POD on that account in error and when mom passed, it took them three weeks to release the money to me.  There was never supposed to be any type of probate.  So, yeah... DPOA was pretty solid (and free).
greggarten
Posted: Friday, July 20, 2018 1:42 PM
Joined: 2/8/2017
Posts: 919


Hey Live2Learn,

Welcome to the club no one wants to join.  We are glad you knocked on the door.

At this point in time Rockym brings up a good point.  I am making an assumption here that you are going to be the DPOA and health care proxy.  Are there any others that would challenge you on this?  Even remotely?  Dementia makes all evil heads rise eventually.

If there will be no challenges from other folks (siblings, cousins, other relatives or who ever), notary at the bank on one of mom's good days would probably do it.  If there could be some challenges to your plan, maybe a visit with a Certified Elder Law Attorney would be in order.  Misssy2 recently asked about the need to use a CELA and there were some very good replies.  You may want to check that string out.

Good Luck and Best Wishes, Greg


JJAz
Posted: Friday, July 20, 2018 6:10 PM
Joined: 10/21/2016
Posts: 2474


Misssy2 wrote:

The ONLY person that can deem another person is not competent is a JUDGE.

The notaries and Attorneys are basically placing a seal on the document to verify that they "believed" that the person signing the document was "aware" of what they were signing at the time they signed the document.

I took my X's Mother in Law to a bank notary for her son to have access to financial documents and the POA was notarized for free by a bank notary. 

Even if you have a POA you need notarized which is not financial....you can go into your bank and ask your notary to be a witness.

 

Edited: In all honesty....If you need a paper signed NOW....pick a day that your LO is doing WELL...explain the paper ....fill it out together and get to the nearest bank and have it notarized...Simple 10 minute process...DONE.

It carries as much weight as if you go pay 350 dollars for a lawyer to sign it.


 

 

A judge will only have to decide competency if a POA is challenged.  In that case, I would rather have an attorney as a witness than a random bank clerk.

Deb3790
Posted: Friday, July 20, 2018 9:11 PM
Joined: 7/20/2018
Posts: 1


My mom was going to sign poa the lawyer wanted to talk to her neurologist to make sure she was competent just in case someone would dispute it then we signed after he met with her alone and asked questions.

Ps you need to also have in the document that you get there social security or you have to go to the social security office which we did and signed there. And there are different poa I got one for financial and one for medical.


Misssy2
Posted: Saturday, July 21, 2018 9:44 PM
Joined: 12/14/2017
Posts: 1714


Also

Anyone who also wants to Revoke a Power of Attorney...those forms are online too.

We were able to revoke my b/f brothers "attorney" status and switch it to my boyfriend.

His mother got sick of being threatened with the Nursing Home everytime she entered the hospital by his brother.

Really, I think I should ask my Dad if he wants me to do a Form to Revoke my Mothers POA.

Knowing my Dad....he would say..."Leave it like it is..if she wants me dead I will die...that's all".

He's a special man...stands up for this women he calls a wife/mother.


Mobile AL
Posted: Saturday, July 21, 2018 10:49 PM
Joined: 7/21/2018
Posts: 19


States have different forms of POA's and some Courts have really become sticklers with what is in a POA, how it is signed and how it is notarized.  To be on the safe side and avoid possible challenge of the POA, it is best to see a lawyer.  If the doctor has it on his records that a person has been diagnosed with a type of dementia then the lawyer can and should talk with the person before he signs the POA to determine if the person is lucid at the time of signing.  If, on the other hand, the doctor has it in his records that he suspects (but has not diagnosed) some dementia then it won't be challenged. Put a primary and an alternate or secondary person to carry out the instructions in the POA.  Be sure to do the same with a Will and Living Will.  My father was diagnosed several years ago and 3 years ago he co-signed for one of his grandsons to buy a car.  Grandson had car repossessed and daddy was held responsible for the $21,000 due on the car.  I was a legal assistant for over 15 years and had prepared POA's and LWT's for my parents right after my father was diagnosed with signs of alzheimer's. Turned out we ran into two problems with the POA.  1) Could not find where my mother put the documents (she has alzheimer's too) until about a year ago. 2) Since I lived out of town, my sister was given POA and an alternate wasn't listed. My sister now has a rare form of lymphoma and has been put on a list for stem cell transplant. I have POA over my sister but not my parents. In Alabama it is now required to name an alternate whether it's on a Durable POA or a Specific POA. As for the outcome on the car fiasco, my daddy's doctor wrote a letter stating when daddy was diagnosed and what stage he was at when he co-signed the car note. I submitted the letter as well as a financial statement to the finance company and daddy was cleared from the car note.
Mobile AL
Posted: Monday, November 4, 2019 11:49 PM
Joined: 7/21/2018
Posts: 19


With any legal document, the notary/witness does not even need to know what the document is.  They sign their names to attest that the person signing is the person they claim to be. Usually, if it's an attorney drawing up the document, they know the person is who they claim to be because during the conversation the attorney will ask certain questions to determine it or, at some law firms they actually take the client's picture and a picture of their driver's license or ID for their files. The witness/notary at your bank will ask for verification of identity but also does not need to know what the document is or what is said in it. That's the way in Alabama anyway.  Every State has it's own requirements but usually are quite similar with witness/notary duties.
JJ401
Posted: Tuesday, November 5, 2019 2:05 PM
Joined: 6/19/2018
Posts: 51


My MIL signed POAs while she was a resident in memory care. Not sure that they would have held up if her estate was large (it was miniscule) or if challenged, but they worked. 

 


abc123
Posted: Tuesday, November 5, 2019 6:21 PM
Joined: 6/12/2016
Posts: 636


Make sure you get a Durable power of attorney. It stays in effect even after your LO is incompetent. I’d check with my state laws and get it done asap, on a good day.
 
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