California resident Austin Stephens had two children, Lawrence and Shirley. In 1989, Mr. Stephens executed a durable power of attorney naming Shirley as his attorney-in-fact. Lawrence moved to Colorado that same year, an event that troubled Mr. Stephens, who felt his son had left him at a crucial time. By 1990, Mr. Stephens had lost his eyesight and relied upon Shirley to read documents to him. At that point, Mr. Stephens decided to make a gift of his home to Shirley.
The deed was prepared, and in the presence of a witness, Mr. Stephens verbally instructed Shirley to sign his name to the document. She did so and had it notarized, but she was not in Mr. Stephen’s presence when she signed the deed. The County Recorder’s office contacted Mr. Stephens by phone, and he confirmed verbally that his intent in executing the deed was to transfer his property to Shirley as a gift. After the deed was recorded, it was delivered to Mr. Stephens’s residence, where he verbally acknowledged receiving it and instructed Shirley to place it in safekeeping.
After Mr. Stephens died, Lawrence filed a petition for probate of his father’s will and a petition to determine title and require transfer of the property to the estate. A trial court declared Shirley the sole owner of the property under the “amanuensis” rule, which provides that where the signing of the grantor’s name is done with the grantor’s express authority, the person signing the name is not deemed an agent but is instead considered a mere instrument of the grantor, and the signature is deemed to be that of the grantor and not of the agent.
In an apparent clash of state statutes, a Florida appeals court has ruled that a guardian is not required for an incapacitated individual who had executed a durable power of attorney.
A Florida woman was found to be incompetent during guardianship proceedings, but the trial court declined to appoint a guardian because she had executed a valid durable power of attorney for her husband and stepdaughter. The woman’s grandniece and grandnephew appealed. They contended that Florida state law requires a guardian to be appointed. The law states that “when an order is entered which determines that a person is incapable of exercising delegable rights, a guardian must be appointed to exercise those rights.”
The ward’s husband and stepdaughter argued that no guardian was needed because they held power of attorney to manage her affairs. Durable powers of attorney may survive the incompetency of the principal under Florida law, as in all states.
Like what you’ve read? Then flash forward to my next post on trust fund interests.
To dispel this apparent conflict, the Fourth District Court of Appeal pointed out another section of the law requiring that an order appointing a guardian must be “the least restrictive appropriate alternative….” The Court determined that the provisions require a guardian to be appointed only when no other lesser intrusion on the privacy of the ward will accomplish the purpose of protecting the ward’s property.
The ruling of the trial court was affirmed.
But the California Court of Appeal reversed, rejecting the amanuensis theory because the deed had not been signed in Mr. Stephen’s presence. Since Shirley’s power of attorney did not expressly include the power to make gifts of property, the deed was void.
The California Supreme Court disagreed and reversed again. The Court ruled that the amanuensis rule may be applied in cases where an agent signs a contract outside the presence of the grantor, even when the amanuensis is an interested party, as in this case. An “interested amanuensis” bears the burden of proving that his or her signing of the grantor’s name was not the product of fraud, duress, or undue influence. In this case, Shirley overcame that presumption.
Est. of Stephens (CA S.C., No. S095401, 7-25-02)