Dear Mr. Miller:
My Dad was in an accident several months ago. He and my brother had had an argument over the fact that my brother had stolen $150,000 from the family business. My Dad left the house to drive anywhere to get away from my brother. He ended up wrapping the car around a traffic signal. He wound up paralyzed but at least did not hurt anyone else.
He cannot speak or move. The only way he can communicate is by eye movements. Left for “yes” and right for “no.” He desperately wants to change his Will and Trust to write out my brother. How can he sign any of the legal documents if he can’t move?
Desperate for Help
What does the Principal Actually Want
What Do the Existing Documents Provide
Signing by Mark
Signed on Your Behalf–Powers of Attorney and Wills
The Living Trust Problem and Statutory Form Powers of Attorney
Financial Institution Resistance
We all get into a frenzy and need to blow off steam occasionally. Behind the wheel is probably not the best place to do that. Baseball bats to Coke bottles and cans are probably a better choice. Hopefully your Dad’s situation will improve. But since we don’t know that, we have to look at things as they exist now.
What does the Principal Actually Want: First, we have to determine if your Dad is serious about the change and it is not just a momentary thing. That would require my interviewing him and obtaining his answers by the eye movement approach. Then we need to determine what it is that he wants. Possibly leave everything to you. But there is more than that that with which we need to deal. For starters, what about the powers of attorney for assets and health—is your brother named as the manager? If so, then that needs to be changed. So a lot of issues need to be discussed.
Signing by Mark: Assuming changes are necessary, then we have to determine how your Dad is going to sign the documents making those changes. Most of us are familiar with the old western movies and TV shows where the guy who didn’t know how to write just made a mark to indicate his “signature.” That wasn’t just Hollywood, as that procedure actually exists. The mark, generally, has to be witnessed by two people, one of whom writes the signer’s name and his own name near it (California Civil Code Sec 14). In the past I have had a person simply make a “dot” where making an “x” was gong to require more energy than the client had. If your Dad can hold a pen in his teeth and move his head, that might work; unfortunately, it sounds like your Dad will not even be able to do that.
Signed on Your Behalf–Powers of Attorney and Wills: So for those completely paralyzed, what do we do? Powers of attorney, both health care directive types and asset types, can be signed ” in the principal’s name by another adult in the principal’s presence and at the principal’s direction” (Probate Code Sec. 4121 and 4673). A power of attorney for assets can authorize the principal to make changes to the Living Trust if so authorized in the Trust document (Probate Code sec 15401(c) and 4264(a)). And a Will can be signed by another in the same way as a power of attorney (Probate Code Sec 6110(b)(2)). All of the other documents typically involved with an estate plan can generally be signed by the holder of the power of attorney for assets, although real property deeds can present some special challenges.
The Living Trust Problem and Statutory Form Powers of Attorney: Many powers of attorney that I have reviewed are what we call Statutory Form Powers of Attorney. They can be obtained online from several California County Law Libraries for free. But they are truly bare bone. And even though they grant a power regarding “estate, trust, and other beneficiary transactions,” that does not include the authority to make changes to the Living Trust. (Probate Code 4458) So in that situation or if there is no power of attorney, what can we do to amend the Living Trust?
Amanuensis rule: There is something called the “amanuensis rule.” That rule has been confirmed by the California Supreme court in the Estate of Stephens (July 2002). That rule provides that when the signing of a grantor’s name is done with the grantor’s express authority, the person signing the grantor’s name is not deemed an agent but is instead regarded as a mere instrument or “amanuensis” of the grantor, and that signature is deemed to be the grantor’s. While this case applied to the signing of a Deed, the rule has been applied in other situations, too, and should be applicable to the signing of Living Trusts. However, you should probably not act as the amanuensis since you are obviously involved.
Financial Institution Resistance: Ok, that’s the legal; what about the practical? One of the purposes of a power of attorney (or Living Trust) is to allow the holder of the power (or the manager of the Livnig Trust) to be able to deal with accounts at financial institutions. Will a financial institution recognize a power of attorney or Trust document signed by the holder of the power or the amanuensis rather than the principal (your Dad in your situation)? Many financial institutions do not like to recognize powers of attorney that are more than 6 months old and especially when they are not on their own form. So a court order may actually be required to enforce this document.
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