Justice James Pagones
Petitioner sought an order compelling Merrill Lynch Pierce Fenner & Smith to accept a power of attorney executed on Dec. 18, 2010. The court noted that prior to compelling Merrill Lynch to accept the subject power of attorney, it must examine if a valid power of attorney existed. Merrill Lynch contended that Ilona B.R. may have lacked capacity at the time the power of attorney was executed. The court noted if Ilona lacked capacity to understand and comprehend the nature of the transactions when she signed the power of attorney, then it was void. A letter submitted in opposition to the order to show cause indicated that on Jan. 19, 2011, Ilona suffered from "moderate to severe dementia." Yet, the court noted there was no medical evidence offered as to Ilona's state of mind on Dec. 18, 2010 when she signed the power of attorney, and the court declined to "supplant its intellect for that of a physician" to infer if Ilona suffered from dementia a month following her execution of a power of attorney. It stated the fact she was diagnosed with moderate to severe dementia, alone, did not create an issue of fact as to her mental capacity. Thus, the petition to compel Merrill Lynch to accept the power of attorney was granted.
