Legal Eaze #67 Marital Settlement Agreement/Power of Attorney

Title: April 25, 2007

Q. I got a divorce a couple of years ago. My ex-husband and I had a marital settlement agreement. We each kept a car, and each one of us had the responsibility to pay the debt on the vehicle that we kept. My ex-husband kept the truck, and I kept the car. Then he lost his job, failed to make the monthly payments on the truck. Of course, it was repossessed by the bank. The bank sold the truck for less than what was owed on it, and came after me for the balance. Can the bank do that?

A. Yes, it can. Your marital settlement agreement should have had a clause that said as follows: “if one fails to pay the debt owed on the vehicle, and the other party is sued for the balance, the party who was responsible for the debt shall indemnify the other for any expenses incurred as a result of a lawsuit against the other party”. That means that your ex-husband shall repay you for any expenses you incurred as a result of his failure to pay for the truck. However, if he is out of work, it may be difficult for you to obtain any money out of him. You will have to go back to Court and have the marital settlement agreement enforced against him under CCP 664.6 for material default.

Q. My mother-in-law has dementia. She owns a house and a couple of commercial properties that need to be managed properly. She can no longer take care of business. She does not have a power of attorney for financial affairs. My husband, her son, is willing to step up to the plate, but cannot do anything because no one accepts his authority to do anything. Is it too late for her to sign a power of attorney?

A. Yes, it is. She no longer has the mental capacity to sign a power of Attorney over to your son. If she was to sign one now, with her dementia, someone could challenge your son’s authority as having imposed his will on his mother, and used coercion to make her sign the power of attorney. At this point, the only thing he can do is to file a Petition for Conservatorship over her, with him as the Petitioner. However, he needs to make sure to have a recent physician evaluation as to the true mental condition of his mother, and that needs to be filed with the Petition for Conservatorship.

Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880