I have just had a second meeting with a Donor to sign LPAs (both). Meetings were two weeks apart and instructions taken on her own and full discussion at both meetings about implications and who her Attorneys are to be.
Son as sole Attorney - Property and Finances with Daughter as Replacement Attorney (Daughter apparently not good with money).
Son and Daughter joint and several Attorneys for Health and Welfare.
After documents signed, Son invited into office to sign as Attorney on both. Son was quite demonstrative and loud and demanded to know if he was Attorney or not, not wishing to listen to explanation of the Lasting Powers etc.
There was a strong smell of alcohol from the Son and he was very demanding of what he wanted his Mother to do. First time I had met him and spoken with him.
Son is to be the Attorney on both. I have to send the Lasting Powers to the daughter for signing as well but although Mother presented with capacity I have doubts as to the Sons capacity to sign as Attorney if he is under the influence of alcohol and his suitability and whether his Mother was aware of his condition and if she did if that would change her decision.
Based on my discussions with the Mother she was worried about her finances and we were able to discuss things openly when together but in his presence he was dominating and definitely intoxicated and I am not sure able to understand himself what was involved. The Donor is my client and my capacity assessment is on her but what duty do we owe to Attorneys and checking their suitability, considering we do not always meet them but I have in this instance and I have concerns?
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Dear Lindsay,
This is a bit outside my field but my initial reaction is that you could be at high risk of litigation by the Daughter if the LPA is signed as you mention. I think to protect yourself you should have a meeting with the Donor (without the son being present), and make extensive notes, and then write to the donor confirming your advice.
Serious consideration should be given to the selection of other suitable donees, and if necessary you should decline to act and say so in writing to the Donor, and why you are declining to act.
Sometimes we have to decline cases against our concern that we want to help, and this may one of those cases.
Yours sincerely,
Peter Double / Probate RS