What is attorney's obligation to determine client's competency to sign? 15 Answers as of April 30, 2013

How much responsibility does an attorney have to determine whether an 80 year old Alzheimer patient has before executing power of attorney and irrevocable trust? Other family member had favorable treatment provided in trust agreement.

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Indianapolis Bankruptcy Law Office of Eric C. Lewis
Indianapolis Bankruptcy Law Office of Eric C. Lewis | Eric Lewis
Very little.
Answer Applies to: Indiana
Replied: 4/30/2013
Law Offices of Phillip Day
Law Offices of Phillip Day | Phillip Day
An attorney is not a doctor and therefore cannot be expected to be able to ascertain the competency of a signor. However, an attorney has to be reasonable and if he or she has knowledge of an issue at the time of the execution the question is whether the attorney believes that the signor understands what is being signed. People go thru periods of lucidity even when diagnosed with certain mental conditions so if the signor appears good, is expressing themselves in a positive manner, and a reasonable person would not spot an issue of competency, then the attorney should be okay. However, if the person is drooping over, doesn't know what year it is, seems confused and dazed, then I would believe that the attorney has a duty to not let the person execute the document as that persons competency is in question. When there is a question of competency but it is not obvious, it is better to have a physician present who can sign an affidavit that the person was competent at the time of execution so as to avoid questions later.
Answer Applies to: Florida
Replied: 4/26/2013
Frederick & Frederick PLC | James P Frederick
An attorney must assess capacity and if there is no capacity, then the attorney could not ethically allow the documents to be signed. In cases where capacity is tough to determine, a lawyer must be extra careful.
Answer Applies to: Michigan
Replied: 4/25/2013
Attorney At Law | James G. Maguire
I run into this situation from time to time. Mainly from experience, I feel that I can judge whether or not a person is mentally competent to sign a document such as a will or POA. It is very difficult to challenge the validity of a will. There is a strong presumption that the person signing was competent to do so.
Answer Applies to: Louisiana
Replied: 4/25/2013
Law Office Of Victor Waid
Law Office Of Victor Waid | Victor Waid
The standard in determining the lucidity of the person to sign documents of importance, is if there is a doubt by the attorney, then a medical doctor should make a determination of mental capacity to sign documents and understand their effect; generally, the question should be asked, whether an attorney, having experience in these types of matters, would have found the person lucid enough to understand the nature of the documents and their legal effect before signing, after an appropriate explanation by the attorney. If the attorney is not experienced in this area of law and type of matter, then the attorney should refer the matter to an attorney who has experience in representation of this type of person, in determining if the person is capable of understanding the nature and legal effect of the documents to be signed.
Answer Applies to: California
Replied: 4/25/2013
    Law Office of Nathan Wagner
    Law Office of Nathan Wagner | Nathan J. Wagner
    Do you mean to ask whether the attorney has authority to decide whether the person is competent? No, a probate judge determines that, if there is a dispute. The attorney is just a witness (given the same weight as any other witness) to whether the person appeared to understand what they were doing that day by executing the POA and trust.
    Answer Applies to: California
    Replied: 4/25/2013
    Durham Jones & Pinegar | Erven Nelson
    The attorney should be sure that the client is competent when signing any documents, particularly a power of attorney and trust. You could dispute the documents based on incompetency and undue influence.
    Answer Applies to: Nevada
    Replied: 4/25/2013
    Danville Law Group | Scott Jordan
    An attorney has the duty to determine whether an individual has the legal capacity to change the terms of their trust, but mentally and whether the person is being coerced into making the changes. An 80 year old with Alzheimer's may or may not have the legal capacity to make changes, it depends on whether that person understood the changes they were making and whether they were doing it without coercion. If you wish to contest POA or trust, you should do so sooner rather than later.
    Answer Applies to: California
    Replied: 4/25/2013
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    A very, very difficult question. The lawyer represents his or her client, and has a duty to do what the client wants. That means the lawyer needs to be assured that the client is able to clearly state what he or she wants. A lawyer can find him- or her-self on the edge, in the grey area, but if the client expresses the same wishes consistently, and meets certain basic criteria, the lawyer might move forward. It's all balancing dementia hits different people differently, and just because a person is diagnosed with dementia doesn't mean they automatically lose their ability (or their right) to make testamentary plans.
    Answer Applies to: Oregon
    Replied: 4/25/2013
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    A lot. They can be sued for malpractice or other torts. If there is any doubt about capacity a doctor's letter should be requested that sets forth whether the client possesses testamentary and/or contractual capacity.
    Answer Applies to: Nevada
    Replied: 4/25/2013
    Kokish & Goldmanis, P.C.
    Kokish & Goldmanis, P.C. | Bernard H. Greenberg
    It is the attorney's responsibility to determine legal competency of the person who will be signing documents. While that can be accomplished in many ways, it is the attorney's duty to make a legal determination (not judicial, although this is sometimes necessary) of competence. Obviously, in cases like yours, doing so is critical due to competency questions. If the signing person lacked required capacity, then the documents may not be valid.
    Answer Applies to: Colorado
    Replied: 4/25/2013
    Reger Rizzo & Darnall LLP | Kathleen DeLacy
    Normally there are some questions attorneys can ask. As far as competency, especially with someone who has Alzheimer's, the client can be lucid at times and that is all that is necessary. If the situation is very critical some attorneys even videotape the signing to show lucidity at the time of signing.
    Answer Applies to: Delaware
    Replied: 4/25/2013
    James Law Group
    James Law Group | Christine James
    The question is fact driven based upon the specific circumstances of each case. If there is some indication of incompetency it raises the obligation. If there is no indication, the obligation is low. If you think your parent was not competent when they signed a document, you may want to speak with an attorney about your options.
    Answer Applies to: California
    Replied: 4/25/2013
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    Under the circumstances, a lawyer should generally form an opinion of whether or not at the time of the signing the person executing the power of attorney and trust has contractual capacity. One of the problems is that persons with Alzheimer's or advanced age can have periods of complete competency interspersed with periods of incompetence.
    Answer Applies to: Michigan
    Replied: 4/25/2013
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    An attorney has an ethical obligation to make sure that his or her client is legally competent which is not always the same thing as medically competent.
    Answer Applies to: Nebraska
    Replied: 4/25/2013
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