I can not locate my father’s original power of attorney. I was going to have another power of attorney prepared for him to sign, however, I do notthink that he would understand what he was signing. What can I do?
If you have been unable to locate your father’s original power of attorney, but have a copy of that executed document, you may be able to use the copy to manage his financial affairs. I say “may” because financial institutions often require that an original power of attorney be produced.
In the absence of an original or copy of your father’s power of attorney, you could proceed as follows. If you are certain that your father would not understand what he was signing, any power of attorney or contract that he signed would not be valid. To be valid, a document must be signed by a person who has themental capacity to understand the legal significance of the document that they are signing. In fact, under Maryland law, only powers of attorney which are signed and acknowledged by a grantor as their act for the uses and purposes stated therein, before a Notary Public and two witnesses are required to be accepted by banks and other financial institutions.
Although it is generally recommended that everyone execute a power of attorney permitting others to handle their financial affairs, in some limited instances, for example if a disabled person does not have any assets to manage, or has a convenience account or representative payee arrangementestablished, the absence of a power of attorney may not be crucial. However, under most circumstances a power of attorney should be executed, and it if is not, and assets need to be managed for a principal who lacks the mental capacity to sign such a document, then someone will have to file a Petition with the Circuit Court seeking to be appointed as guardian of the disabled person. Guardianship is a adversary proceeding and the costs and accounting inherent in such an actionfar outweigh the costs and effort needed to prepare a power of attorney.
Published in the Spring, 2012 issue of Outlook By The Bay magazine.