Scenario: An older person comes to the dealership and purchases a vehicle and takes delivery. A few days later, her daughter wants to speak to you and indicates that her mother was not capable of purchasing a vehicle and that the daughter has power of attorney. She wants the transaction unwound. What is the dealership to do?
This scenario occurs frequently and needs to be handled carefully otherwise it can be a lose lose situation. Many older people have durable powers of attorney which provides another trusted individual to have some control over their finances and everyday decisions. However, the caveat with a general durable power of attorney is that the individual providing the power (the elderly person) still has control over their finances and daily decisions. The catchall is if there is a guardianship. If there has been a guardianship through the probate courts, then in that instance, the elderly person relinquishes their control over their decision-making processes for their finances and other life decisions. However, what is the dealership to do? In this scenario, the dealership has every right to ask for a copy of the power of attorney indicating that the customer was not capable of handling his or her finances. You have the right to review the document. Again, if it is not a guardianship, then the customer has every right to enter into the transaction. As stated previously, if it is a guardianship, then the person did not have the ability to enter into the transaction and the transaction needs to be rescinded. The dealership has to have verification of the guardianship prior to the time of unwinding the deal. What could happen if there is no guardianship? The customer could file a discrimination case against the dealership for various different reasons including but not limited to age discrimination or any number of other protected classes. There are ways for the dealership to protect itself prior to the time of entering into an agreement with the customer. In most states, the guardianship is through the county probate court. Your general manager can easily access the court documents to see whether or not a guardianship is in place for the individual. Otherwise, the store should ask for verification from the individual who claims to have the POA/guardianship for documentation supporting same. Again, regardless of how much a family member may protest, if the proper guardianship is not in place then they have no power to rescind the transaction. Only the customer can try to do that.
The other issue involved is not legal but is purely an “optics”. Even if the elderly person is capable of contracting and purchasing a vehicle, is the son/daughter or other interested individual going to cause a public relations issue claiming that the dealership takes advantage of elderly people that allegedly, whether true or not, are incapable of handling their own affairs. Obviously, this is a judgment call on your part.
Contact Information:
Robert A. Poklar, Esq. – rpoklar@westonhurd.com; 216.687.3243
Having been a Chevrolet dealer, Robert A. Poklar’s business background and experience in the automotive industry aid him in his representation of numerous Ohio automotive dealerships. He also represents after-market service companies, trade organizations, dealers, advertising associations and corporations.
