Greenwood, SC asked in Probate for South Carolina

Q: Is it illegal to get someone to sign a dual power of attorney if the person has dementia when they already have poa?

Is that considered elder abuse?

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2 Lawyer Answers
Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Probate Lawyer
  • Crossville, TN

A: A POA given by someone who lacked sufficient mental capacity when it was signed is invalid. Unfortunately, the challenger must prove the lack of capacity. Yes, coercing an elder who lacks capacity to sign a document that has legal significance is elder abuse.

Theodore David Vicknair Sr.
Theodore David Vicknair Sr.
Answered
  • Probate Lawyer
  • Mandeville, LA

A: It can be. It depends on whether the person has capacity at the time it is signed. In my state, as I suspect in others, capacity is presumed and must be proven by the party who is attempting to prove lack of capacity. Even if a person has dementia capacity is presumed, and a person can always have a "lucid interval", meaning a "good day" even if most are "bad days." If the person does not have capacity, then yes, this would be prima facie evidence of elder abuse, and it can be a prosecutable crime, especially if the person has absconded with the elder's assets. If the POA does everything above board, however, and the elder does not get taken to the cleaners, the POA is looking out for the elder's best interest, and the heirs do not get taken to the cleaners, a District Attorney might choose not to prosecute, even if there was lack of capacity. But lack of capacity + stealing = jailhouse (or a real chance of it).

I hope this helps.

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