Do you understand your duties when representing an elderly client? It is critical for you to be aware of the potential liability that the client may not have the capacity to understand their actions.
In Van Heyde v. Miller, 799 S.E. 2nd 133 (W.Va. 2017), a real estate agent was sued on the basis that the seller’s agent breached his contractual duties because he knew or should have known the seller was mentally incapable of legally transferring his property. The agent sought dismissal claiming the seller did not exhibit signs of mental incompetency. Nothing about the conduct of the elderly client should have suggested that there was any problem with his mental functioning.
He also introduced the testimony of the seller’s physician, who had examined the seller shortly after the closing and before his death, “…testified that [the seller] was coherent during the examination and had the sufficient mental capacity to understand the nature of his medical treatment and to refuse to be admitted to the hospital for further evaluation of a suspected underlying cardiac issue.”
The plaintiff submitted affidavits in opposition to the motion which indicated the seller “was becoming increasingly forgetful, lost, and unable to identify the current day or month…” The dismissal was granted and the dismissal was upheld on appeal. Nevertheless, this case is a good illustration of the potential liability a licensee may have if he or she chooses to ignore obvious signs of capacity issues.
Undue Influence issues.
Even when an elderly seller has the capacity to complete a transaction, the sale could be subject to attack if it is the result of undue influence. Undue influence is the misuse of one’s role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person’s decision in a particular matter.
Agents owe an absolute duty of fidelity to their clients. Have you ever sat at a listing appointment with an elderly prospective client and his/her adult child? Who does all the talking? Does the senior seem like they really understand what is going on and agree with the sale of their home? Do you know what your duty is under these circumstances?
Interested in learning more about potential problems in the representation of seniors as well as solutions to the issues? Join us the January 24 and February 10 for a 1-hour free CE Lunch & Learn entitled “Avoiding Breaches of Fiduciary Duties While Representing Seniors”.