Making Sure Your Power of Attorney Is Valid

June 14, 2013 by Scott C. Soady

A power of attorney is an important estate planning tool that authorizes another person to make decisions for you should you become incapable of making them yourself. A health care power of attorney is a document that specifically applies to decisions regarding your personal care, treatment and maintenance. Health care powers of attorney are especially important for residents of a nursing home or other extended care facility. In these situations, the agent designated by the power of attorney must take care to safeguard the legal rights of the individual in the event something goes wrong.

Recently, a California appeals court thwarted a nursing home’s effort to enforce a clearly invalid health care power of attorney reportedly signed a by a resident who died under the facility’s care. The case, which is only discussed here for informational purposes and should not be construed as legal advice, demonstrates how failure to follow basic California legal requirements can lead to significant problems later.

No Witness, No Notary, No Power of Attorney

Geneva Benthin, a woman then in her 90s, entered Emeritus at Westwind Gardens, a nursing home, in 2008. Benthin’s daughter, Joyce Root, organized the admission and said she held her mother’s health care power of attorney. Root also signed an agreement stating any legal dispute with Emeritus would be resolved through binding arbitration rather than the court system.

In September 2010, Benthin died as the result of injuries sustained from a fall at the Emeritus facility. Root and Benthin’s other legal heirs claimed Emeritus’ negligence caused Benthin’s death. They claimed Emeritus staff left Benthin “outside and unattended in the dark on wet pavement,” despite her advanced dementia and osteoporosis.

When Root and the heirs attempted to sue Emeritus in court, the nursing home countered with a petition to compel arbitration under the agreement that Root signed two years earlier. That agreement was based on Emeritus’ belief that Benthin signed a valid power of attorney in 2007 naming Root as her agent. Before the court, however, Root argued the power of attorney was legally invalid because Benthin’s signatue was never witness or notarized.

California law is quite clear on this subject. A power of attorney must be “acknowledged” either before a notary public--a person authorized by the California Secretary of State to witness and authenticate documents--or before two adult witnesses (excluding anyone named as agent). Here, there was no dispute that Benthin’s signature on the power of attorney was neither notarized nor witnessed.

Both the trial court and the court of appeals rejected Emeritus’ attempt to get around the witness-or-notarization requirement. The nursing home tried to argue that Benthin’s signature alone demonstrated her “intent” to let Root make decisions for her--including agreeing to mandatory arbitration--but the courts would have none of it. As the appeals court noted, the California legislature specifically mandated “acknowledgment” to provide a minimum level of protection for individuals.

A Simple Lesson

This was a straightforward case with an even more straightforward lesson. A power of attorney is a formal legal document that must comply with certain requirements such as notarization or witnessing. It’s important not to take shortcuts or prepare a power of attorney in haste. You should always work with an experienced San Diego estate planning attorney who understands the legal and formalistic requirements of these documents. If you’re in the San Diego area, contact the Law Office of Scott C. Soady today at 1-877-435-7311.