Just When You Thought the Worst was Behind You

A recent Allegheny County court case has shed some light on an old notion that, while it has always been wrong, has been allowed to exist for decades. How often have you heard, or even thought to yourself, that simply because you are married, you can sign papers for your spouse? Or make decisions for the person just because he or she is your spouse? I hear this in my office almost every day. People believe that their marriage makes them one legal entity and that belief has always been wrong.

Here in Pittsburgh, that belief has run aground on the rocks of the court. In the case of Hickman v. Woodhaven Care Center LLC, one of our local judges has finally shined a bright light on the practice of allowing spouses to simply sign documents for each other without a signed and valid Durable General Power of Attorney. In that case, the wife arrived at the nursing home after suffering a severe stroke. She had no memory, was nonverbal and did not appear to be able to understand others. She had not signed a power of attorney before suffering the stroke, and she certainly could not have signed one afterwards.

At issue was whether the case could be heard in the Court of Common Pleas, or whether the arbitration clause that the husband had signed for his wife was binding. The husband had signed some forms when the wife was admitted, and one of those forms was a consent form allowing all disputes between the nursing home and the family to be arbitrated. The judge decided that the husband could only bind his wife if she had signed a writing expressly authorizing him to do so.

That writing is called a power of attorney, which creates a special relationship of principal (wife) and agent (husband). The judge concluded that the existence of an agency relationship does not arise merely from the marital relationship itself. Neither the husband nor the wife, by virtue of their marriage, has the power to act as the agent for the other. There were many previous cases that were relied upon by the court to reach this conclusion. This case has just been appealed to our Superior Court, and it will be a year or so before the case is decided, so stay tuned for the update.

Now for the reality check. In the everyday operation of our homes, many spouses sign or endorse checks or other documents for their counterparts who are unavailable because they are at work. This practice has gone on for decades, and banks and businesses allow it to happen as a convenience. However, you will not find that practice tolerated in the stock brokerage business, the real estate business or the legal profession. Why? Because the validity of a signature can change the outcome of a case. And most of the documents that are signed in these types of situations require that a notary public affix a signature and a seal to the document. If someone in one of those heavily regulated industries were to look the other way and just allow the thing to pass, there would be consequences later on and trouble would follow.

So what is the solution? The Durable General Power of Attorney has been around for hundreds of years, and it is a fairly simple document. An attorney can prepare one within a short time and fairly inexpensively, and you can get it signed, witnessed and notarized. Once you have it, put it in a lockbox so that your family can get it out and use it when and if you run into an issue that requires your signature, such as the sale of your home or car, or the signing into or out of a hospital or nursing home. It is inexpensive insurance that will more than pay for itself with one use.

Christopher M. Abernethy has been practicing law in Hampton Township since 1976. He focuses on elder law, which includes wills, trusts, powers of attorney, living wills and probate matters. He also is proficient in all aspects of real estate law and business law. He is a member of the National Association of Elder Law Attorneys and the AARP Legal Services Network. He can be reached at 412-486-6624 or by e-mail at cabernethy@aaylaw.com.