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LegalGems
LegalGems, Lawyer
Category: Family Law
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My adult cousin in Pennsylvania suffered a stroke

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My adult cousin in Pennsylvania suffered a stroke 10/8/15.She has no DPOA in place. I am in Michigan trying to work with other cousins in PA and UT to handle her affairs. I am preparing a packet of documents to fax to her doctors for determination of competency and if they feel she is capable of granting DPOA, or if our only option is expensive guardianship process. The local county orphan's court sent me some info links but little that I think apply. I have an outline of questions to answer to her level of disability and impairment if they think she's incompetent. I need to know what needs to be in their statement if they find she has enough of her faculties to assign a DPOA now. Thanks!
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.

A few minutes please as I see what information I can obtain specific to PA.

Expert:  LegalGems replied 1 year ago.

Section 5501 defines mental incapacity as:

5501. Meaning of incapacitated person. "Incapacitated person" means an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety. (accessible here- http://www.legis.state.pa.us/WU01/LI/LI/CT/PDF/20/20.PDF)

A review of case law can help one understand when a court will determine a person to be of sufficient mental capacity for executing legal documents:

In re Estate of Woods: (here)

In the instant case, the record indicates that although Mrs. Wood's memory is seriously impaired, she is aware that the Bank is managing her assets and she has consistently maintained that she wants to entrust her money to the Bank rather than to appellant's wife. Moreover, the psychiatrist who interviewed Mrs. Wood concluded that she was capable of choosing a financial representative. Under these circumstances, we conclude that the trial court did not abuse its discretion by finding that appellant did not clearly 181*181 and convincingly prove that Mrs. Wood is incompetent within the meaning of the statute.

Horner v Horner (here)

We conclude that sufficient capacity is shown where the donor demonstrates an intelligent perception and understanding of the dispositions made of property and the persons and objects he desires shall be the recipients of his bounty.

....

"Old age, sickness, distress or debility of body do not prove ... incapacity, nor do inability to transact business, physical weakness, ... or failure of memory." Id. at 67, 153 A. at 139 (internal citations omitted). See also Jones v. Schaefer, 357 Pa. 628, 637, 55 A.2d 387, 391 (1947) (concluding that eighty-two year old donor's debilitated physical condition, suffering from kidney disturbance, glandular enlargement and generalized arteriosclerosis did not "so reduce his mental capacity ... as to justify a court's deciding that his acts [in making gift of real estate] can be given no legal effect"). Our consideration of Pennsylvania jurisprudence reveals that similar measures apply to a determination of testamentary capacity. See In re Kuzma's Estate, 487 Pa. 91, 408 A.2d 1369 (1979) (concluding that testator possesses adequate capacity "if he knows those who are the natural objects of his bounty, of what his estate consists, and what he desires done with it even though his memory may have been impaired by age or disease"). See also In re Ziel's Estate, 467 Pa. 531, 359 A.2d 728 (1976)(concluding that greater degree of proof of mental incapacity is required to set aside will on ground of lack of testamentary capacity than is necessary to show inability to conduct one's business affairs).

A few minutes please.

Expert:  LegalGems replied 1 year ago.

Vine v. Commonwealth also discusses capacity:

Four days after her stroke, on January 30, 1998, Appellant purportedly executed apower of attorney (the "POA"), making her then-husband, Robert Vine ("Robert"), her attorney-in-fact and giving him authority to, among other things, engage in retirement-plan transactions on her behalf. Appellant's signature on the POA consisted of an "x" marked on the appropriate line, accompanied by the notation, "her mark." A nurse at the hospital in Virginia signed as a witness, and the document was notarized. According to the testimony of Appellant's physician in Pennsylvania, who reviewed the medical records from her hospitalization in Virginia, at the time Appellant supposedly executed the POA she: was suffering from a traumatic brain injury; was intubated (meaning that a machine was breathing for her); was being treated with sedatives which affected her reasoning and judgment; and was unable to make important life decisions due to her aphasia. Appellant has now recovered mentally, but remains a paraplegic.

https://scholar.google.com/scholar_case?case=18347967991469255018&q=5501+mental+incapacity+power+of+attorney&hl=en&as_sdt=4,39

The Wilhelm case discusses (here) that a valid POA requires that the principal has an understanding, on the date of execution, as to what the document means, and what effect it will have on one's finances.

Expert:  LegalGems replied 1 year ago.

If someone challenges the document, as you will see based on the above cases, the court will consider evidence such as medical records relating on/near the date of execution, testimony of caregivers, etc, in order to determine if the party has the requisite capacity.

Some people will work in conjuction with an attorney and a medical provider, both being present at the signing, to ensure that the individual has the requisite intent (as in many illnesses, mental capacity comes and goes so the date of the execution is very important)

Expert:  LegalGems replied 1 year ago.

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Here is a link to locate an attorney:
http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm

Should you have further questions please post here to continue our dialogue. Otherwise,

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