Power of Attorney
The validity of Powers of Attorney (POA) is increasingly being questioned. The DeHass Estate, a 2011 Orphan’s Court Case, puts everyone on notice that a POA should be signed only after legal consultation. The Court found that husband, who made a POA naming his wife as agent with the power to make gifts, lacked capacity to make the POA. Although the Court set aside the action taken by the Agent in this case, we do not wish to alarm the many husbands and wives who have POAs naming each other as Agent. The facts in DeHass Estate are that husband appointed wife as agent, then wife used the POA to sign the deed to transfer their house to her name alone and she executed a new Will disinheriting the husband’s children. Then wife died. Then husband died. Husband’s Executor challenged the validity of the POA and won. The injustice of disinheriting husband’s children through the use of a POA is clear. What is more interesting for legal counsel is that there is no Appellate Court Case stating the standard of capacity/competency needed to make a POA. Nevertheless, the POA remains an important part of planning for convenience, for disability and for when one cannot manage their own affairs. Of course, we encourage all Agents acting under a POA to refrain from using their power to change the testamentary disposition chosen in the Principal’s Will.