It
is generally accepted that the standards for capacity to execute legal
documents differ depending on the complexity of the document; but there is
no clear agreement regarding the level of capacity required to execute a
power of attorney. Some legal writers have suggested that a power of
attorney is an "agency" contract and that the capacity required should
be the same as that required to enter into any simple contract.
Others argue for a lesser standard -- that the person signing the
power of attorney only needs to have a general understanding that the
document authorizes another to handle his or her affairs.
The limited
Pennsylvania
case law that exists seems to
support this latter, more lenient, standard.
A
recent
Chester
County
court decision discusses the
question of the intellectual capacity required to execute a power of
attorney. In April 2002, Mary
Govett, age 81, executed a power of attorney. A month earlier, a
Department of Aging employee had administered a standard mental acuity
test which indicated that Ms. Govett was severely incapacitated.
In April, a physician performed a psychological evaluation which
produced a diagnosis of "likely dementia with secondary
agitation/suspiciousness."
Given the opinions of the doctor and Department of Aging employee, was
Mrs. Govett still competent to sign a power of attorney?
When the case went to court, the Judge noted that an individual is
first presumed to be competent. The burden of proving that someone was not
competent to sign a power of attorney thus falls on the party contesting
the instrument. Lack of
capacity must be proved by clear and convincing evidence.
The
Judge went on to say that someone who is suffering from dementia may still
be competent to execute a valid power of attorney. "Evidence of dementia
does not necessarily imply that one is legally incapacitated." The Judge
noted that there was testimony that Mrs. Govett understood what was
happening, was oriented to time, place, and person, and knew what she was
doing when the power of attorney was signed.
As a result, the Judge concluded that there was no clear and
convincing evidence of intellectual incapacity and upheld the validity of
the power of attorney.
Govett, Incapacitated Person, 23 Fiduciary Reporter 2d 287 (
Chester
, 2003).
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