Both of my parents received POAs from two different attorney offices, in 2013 and 2019 and both attorneys charged my parents over $800. I am the authorized agent on both POA. My parents are now in a nursing home as they both need 24 hour care. I am trying to sell their home but the title company refused to honor either POA, stating they require doctor documentation stating my parents had the mental capacity at the time they signed the POA. Can a title company refuse to honor a POA? If so, why do attorneys charge and complete POAs without requiring the client to obtain doctor documentation indicating they have mental capacity at the time they signed the POA? Having to obtain that information, 9 years later, when the best time would have been at the signing. Don't attorneys have the responsibility to inform clients that title companies may not honor their POAs without doctor documentation that they have the capacity to sign a POA?
One thing that one should have in their POA is the actual address of the house they own. So many POA's are written without that information which can cause a major delay here in my State.
My parents' old POA's were older than dirt and State laws had changed over those decades. Thank goodness they also updated their Wills, otherwise it would have been a disaster.
So it all comes down too...read your Financial and Healthcare POAs very carefully.
So, hopefully the lawyer your parents used is still around. Just have him write a letter saying she was of sound mind at time POA was assigned and that as of now, suffering from Dementia, can no longer make informed decisions so her POA would be effective. If that lawyer is not around, then any lawyer should be able to say that a POA cannot be assigned if the person was not competent to do so then going on to say that the person has now been found incompetent. Get a letter from her Dr. Stating she is incompetent.
I just looked at my Moms and nephews POAs. There is nothing in the writing in these POAs that say either are competent to assign a POA. Both drawn up in the same state by different lawyers.
Moms says POA but she is given the choice when she signed to make it Immediate or Springing. She chose immediate so maybe that is why the POA was never challenged. Her Medical reads "DPOA for Medical". My Nephews reads DPOA and the word Immediate is used. His medical reads "Advance Directive for Healthcare" and that is only effective if he is incompetent or not able to make decisions because...maybe he is in a coma.
So, its very important that you read your POAs. Mine says I have the right to sell. But I have never heard you have to prove they were competent at time of assigning POA. If this is a new law, I would say anything written before that law does not count.
In my experience, title companies can and do request additional information, but again in my experience, that info has generally related to encumbrances. I think it would be up to the title company to establish what it requires as additional documentation. - it is in fact the company that's taking the risk of ensuring valid title.
You might also want to contact a different title company to see if it takes the same position.
Do either of the documents specifically include a provision affirming that the parents are of sound mind and qualified to execute the dox?
There's another issue though, and that's whether the second document SPECIFICALLY rescinded and rendered invalid the first document. That could create enough question in the title company's review to make the demands it has made.
I just recently had both my POA's(medical and durable)done by a local attorney and he not only asked me which I wanted, but also recommended that I do the Durable so my children could act on my behalf immediately, and not have to wait for any documentation from doctors.
I can only guess that since the Title Co. has refused said POA, that it must be a Springing one.