Page 23 - Pierce County Lawyer - July August 2024

Attorney shall not be affected by disability of the principal,” or “This Power of Attorney shall become effective upon the disability of the principal,” or similar words. It must express the principal’s intent that the authority conferred shall be exercisable, notwithstanding the principal’s incapacity.
As to what contents should be included in a Power of Attorney, obviously the agreement must contain the principal’s name
and designate the attorney in fact. The principal may want to designate a successor attorney-in-fact. There should be sections identifying when it goes into effect, duration, revocation,
and termination. Clauses also include applicable law and a severability clause. The agreement should spell out the powers given to the attorney-in-fact and if an accounting and a bond are required. The signing section must have two witnesses or be notarized to be valid.
Liability issues may affect the principal’s attorney. There seem to be three areas of examination of liability — appearance, involvement, and harm. I have not read much case law on determining whether the principal is of mental capacity when
PRACTICE TIP – Don’t throw your client under the bus. A while back, I was sitting on the bench across from Room 129, ex parte, waiting to get an agreed- upon order signed by the commissioner. It was around 1:10 pm, and as I was sitting there deleting my spam messages, an individual walked up to the door and tried pulling it open. I said, “The door will be unlocked at 1:30 pm.” So, the individual sat down and said, “I was told
to meet my attorney here at 1 o’clock.” At 1:30, the door went “click.” As I was getting up, the individual got up and said, “Well, I give up,” and started walking towards the exit door. After the commissioner signed my order, I headed out the door. Someone was on their phone, looking through the door window as I opened it. I held the door open, and the response to me was, “You’re OK. I was supposed to meet my client here at 1:30.” So, I described my earlier encounter I had around 1:10. Now, the correct response to me should have been something like, “Thank you very much, and I wish you a nice day.” But that was not what was said. The response to me was, “My client is an idiot. I told the client to meet me here at 1:30. Talk about a stupid client.” And then he walked away from me.
‘‘RPC 1.6, cmt. 21’’, a lawyer shall keep a [p]rofessional relationship... the disclosure of which would be embarrassing... to the client. I do not know the identity of the lawyer or the client. But the moral of the story is that, even if your client cannot hear you, don’t throw them under the embarrassment bus.
An article about embarrassing your client can be found here: https://www.findlaw.com/legalblogs/ strategist/can-you-share-embarrassing-information- about-a-client/
s/he signs the POA with their attorney present. This seems to be a stickler, particularly if a judge would find that the principal was not competent. Appearance may be deceptive, especially
if the principal looks incapacitated, but still answers questions about whether they are aware of what they are signing. I had one client push the spouse into the office in a wheelchair. The spouse in the wheelchair looked very incapacitated. I asked for the birthdate of their child, and while the husband was thinking about it, the spouse in the wheelchair blurted it out.
Another issue is if the attorney hands the POA with a pen to the principal and says, “Sign here.” To avoid other non-named family members pointing blame at the attorney who is alleged to have taken advantage of a principal who did not appear
to be “mentally incompetent,” have two witnesses sign the witness sheet and add the following to the sheet, “Principal’s Competency. I believe that at the time of the Principal’s previously mentioned signing and request, the Principal was
of sound mind and was not acting under duress, menace, fraud, undue influence, or misrepresentation.” This language comes from Brown v. Brown, 239 P.3d 602 (Wash. App. 2010). It would not hurt to add an affidavit of subscribing witnesses to the witness’s page so that the witness’s signatures are notarized. I must mention that LINX has a “Mental Illness” case search option, but only attorneys of record can look up the principal’s name.
The last issue is harm. There needs to be a finding that “potential and actual harm existed. Furthermore, the potential and actual harm is ‘serious’,” Disciplinary Proceeding Against McMullen, Matter of, 896 P.2d 1281, 127 Wn.2d 150 (Wash. 1995). It would be difficult to prove harm if the principal made it clear who they wanted for their attorney-in-fact and the attorney-in-fact has been keeping good accounting records and can show the court that no funds were used beyond when the principal needed them, and all funds are accounted for.
For my next article, since I am on a roll with estate planning documents, I will write about wills and health care directives.
David Robert Shelvey is a solo practitioner in Sumner, WA. He is a member of the TPCBA, the Pierce County Lawyer Magazine and CLE Committee. He has been an attorney since 2015. He also volunteers as a president and cook for a local nonprofit. david@rockcraft.org.
July/August 2024 | PIERCE COUNTY LAWYER 23