By Quentin Fottrell
'I am a health-care and durable power of attorney. I am also the trustee of her trust and will be the executor of her estate'
Dear Quentin,
I am a health-care and durable power of attorney for a longtime family friend, "Sara," 86, who is now in hospice. I am also the trustee of her trust and will be the executor of her estate. Sara suffered a traumatic head injury a couple of months ago, after which time a male "friend" convinced her to sell her car (worth $20,000) for $500.
Sara's attending physician has since issued a letter stating that she suffers from a permanent and progressive medical condition, which renders her incapable of making health, financial or legal decisions or managing her personal or financial affairs - so all such decisions are left up to me as her power of attorney.
In the meantime, all of her "friends" are visiting her in the nursing home and asking Sara for her personal possessions. Sara, who is heavily medicated and often delirious, is "gifting" items to friends (some of these gifts don't even exist or aren't in her possession). My concern is that she may start "gifting" people large sums of money.
Even though I have the letter from the doctor, I don't want the headache of her friends surfacing after her death with claims of "gifts" that they say she made to them (perhaps with a phone recording as "proof") to get the estate to settle with them. I envision a huge legal headache as most attorneys prefer to settle disputes rather than engage in a court fight.
There's no way I want to give in to any of these vultures surrounding Sara in her time of decline. For context, Sara is an only child, never married and has no living relatives. I am unsure if the physician letter will make any/all "gift" claims mute if her friends claim Sara bestowed them a monetary gift in a moment of lucidity.
Friend of Sara
Related: My elderly cousin's nursing home coerced her into changing her will - and selling her house. She was worth millions. Can they get away with this?
Dear Friend,
The clue is in the title.
It's called a power-of-attorney document because it gives you the "power" to act on your friend's behalf, but you do need to act. Contact Sara's bank with the POA document, and alert them to the fact that bad actors are attempting to coerce your friend into making withdrawals. Also, alert the nursing home to these "friends" who are keen to get their hands on her belongings.
You have responsibilities and obligations as POA. You must, per Timothy Knox Attorneys at Law in Bryn Mawr, Pa., "attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including the the value and nature of the principal's property."
"The agent must act in accordance with the principal's reasonable expectations to the extent actually known by the agent, and otherwise in the principal's best interests, act in good faith, and act only within the scope of authority granted in the power of attorney," the law firm adds. Keep in mind: The law varies by state, and you can be legally liable if you fail in your duties.
As a power of attorney, you must act within the confines of the document, but you also have a fiduciary duty to act in the best interests of your friend. As executor, you will be responsible for initiating probate, administering and taking account of her assets and liabilities (from real estate to bank accounts), and carrying out Sara's wishes in accordance with her will.
Contract law, duress and legal capacity
There may be a reason why Sara's "friend" capped the car price at $500. Contract law varies by state, but in New York one person must make an offer and accept it, and exchange goods or services. "If the value of the contract is more than $500, the contract must be in writing. If it is not in writing, it may not be enforceable," according to this guide from the New York City Bar.
What's more, the New York City Bar says that a contract can be voided if one party signed under duress, undue influence and/or if it was unconscionable or grossly unfair; both parties must have the legal ability _ called "capacity" _ to agree to the terms of the contract. "If you were not legally able to agree to the contract, you might argue that you lacked capacity," it adds.
Another reason for voiding a contract is fraudulent inducement. "Parties must truly intend to agree to each essential term of a contract," the NYC Bar says. "If the other party deceived you regarding an essential term of the contract, you can argue that you never intended to enter into the contract because you would not have agreed to it had you known the true facts."
Don't worry about dealing with these petty pantomime villains. If they approach you with a note or a voicemail or some other "promise" Sara made, you can tell them that none of this has any legal standing. They will merely be outing themselves as people who have tried and failed to take advantage of an extremely ill woman who deserved better "friends" than this.
You are the gatekeeper. Speak to Sara and tell her that she must stop promising gifts to people and, if she is put under pressure by any friend, to call you immediately. The nursing home should also be protecting her. She is there to get help - she is not supposed to be a sitting duck for scam artists, thieves and fortune hunters. It's time to exercise your power.
Make your presence known.
The Moneyist regrets he cannot reply to questions individually.
More columns from Quentin Fottrell:
'She screamed and raged at me': I have power of attorney for my mother's $3 million estate - but my sister feels sidelined. How do I get her off my back?
'My son gets zero': I'm leaving $1 million to my daughter. My son said he'll convince my ex-wife to leave everything to him. Should I split my assets 50/50?
I'm having panic attacks': My ex-husband emptied our joint bank accounts, hacked into my email and stole my life savings. Do I have any recourse?
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-Quentin Fottrell
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08-15-24 0929ET
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