Ask the County Law Librarian – Determining Competency in a Durable Power of Attorney

Q-
Who determines competency in a Durable Power Of Attorney? It states "The powers you grant below are effective even if you become disabled or incompetent". That is the only statement about competency.

Thanks, Richard.

A-
Richard,

Thank you for your question. For a person to establish a Durable Power Of Attorney (DPOA), they must have the mental capacity to understand and sign the document. Looking in a book we have here at the law library called “California Powers of Attorney and Health Care Directives” published by CEB, typically, the attorney representing a principal in the drafting of a DPOA for financial management determines the mental capacity of the client. The “capacity” required to execute a DPOA is set by California statutes and is the same capacity a natural person has in making a contract and is discussed in the California Probate Code §4120 and the California Civil Code §1556.
A person is mentally competent as long as they can understand the rights, responsibilities, risks, or benefits involved in financial decisions, and the potential consequences of what they decide. The Due Process in Competence Determinations Act (DPCDA), particularly California Probate Code § 810-813 sets the standards for determining whether a person has the capacity to enter into a contract.

Some of these standards include:

• Level of arousal or consciousness.
• Orientation to time, place, person, and situation.
• Ability to attend and concentrate.
• Short- and long-term memory, including immediate recall.
• Ability to understand or communicate with others, either verbally or otherwise.
• Recognition of familiar objects and familiar persons.
• Ability to understand and appreciate quantities.
• Ability to reason using abstract concepts.
• Ability to plan, organize, and carry out actions in one’s own rational self-interest.
• Ability to reason logically.

If the Durable Power of Attorney was created some time ago, and you now have a concern that the person executing it did not have the capacity to enter the agreement at the time, you may be able to go to court to challenge the document. To make a determination, a judge would probably question those who knew the person at the time, to determine if they understood what they were doing. For more information on challenging the document, you may want to look at “Capacity and Undue Influence: Assessing, Challenging, and Defending” an action guide also published by CEB.

However, if the person indeed had the capacity to execute the DPOA, but are now incapacitated, the DPOA remains in effect, based on the statement "The powers you grant below are effective even if you become disabled or incompetent". For more research on this topic, all of the codes and books mentioned in this article can be reviewed at the law library.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday’s column. Even if your question isn’t selected, though, I will still respond within two weeks.
 

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January 19, 2013 | 10:31 PM

An emotionally labile person is often treated by others “as if” they are incompetent. Once the person recovers from an upset, the person is stable and competent. The person cannot be legally declared incompetent because in fact, the person is not incompetent. However, there is a concern that others, if they are judges, lawyers, banks who automatically “treat” the person as having no capacity take away this person’s rights without due process, cause harm, or other legal liability issues.
The person carries a letter from a doctor for the purpose of authority giving testimony of the persons competence. Other than this letter, is there anything of a preventative nature that can secure better treatment of this person?

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