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Legal questions/can anyone answer/durable POAs & more

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Legal questions/can anyone answer/durable POAs & more

Post by Sherman on Mon Oct 11, 2010 10:28 pm

I already know that 'Interacasa' is a good candidate to respond to these questions. So, I'm hoping he'll take the time. Perhaps there are others who might have the background as well.
I'm using these questions for several notarios, attorneys, some financial folks and more to see to what extent I get consistent answers. If there is interest, I'm glad to share on this forum the 'collected' responses. THANKS MUCH!!
FILOLI
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1. Durable Powers of Attorney in Jalisco

A. In Mexico, it is my understanding that ‘PODER’ is the document used that is most similar to a US power of attorney and that the rules for Poder differ from one Mexican state to another. True?

B. In Jalisco, it is my understanding that there is no durable ‘PODER’ available, which remains in place and is effective during longer-term mental incapacitations, such as advanced Alzheimer disease, dementia or results of a stroke or where someone cannot speak for him/herself in anyway, such as a permanent vegetative state. True?

C. Available in Jalisco is a general PODER that is not durable and expires in 5 years. True?

When the document expires, a new Poder must be made and the person making the document must be ‘mentally capable’ of making the new Poder. True?

2. Durable Powers of Attorney from Other Mexican States

A. It is my understand that there are five (5) Mexican states (Mexico, San Luis Potosi, Guanajuato, Morelos and Coahuila) that have in their civil codes provision for “advance designation of guardian (with appropriate powers).” True?

B. Coahuila specifically allows for designation of (durable) medical power of attorney (Art. 2998, civil code, Art. 3054) and survival of same in the event of incapacity. True?

C. It is my understanding that the ‘durable’ documents from other Mexican states are ‘recognized’ in the state of Jalisco? True?

Is the term ‘recognized’ and the term ‘legally binding’ the same? Yes/no?

D. Do any of these five (5) states with durable powers of attorney include ‘health care directives’ (living will language) within the ‘durable power of attorney for medical decisions’? Yes/no?

If ‘heath care directives’ cannot be included in the durable power of attorney for medical decisions, do any of these states provide for separate ‘health care directives’ similar to the language set forth in the 2008 MX federal legislation (Decreto por el que se reforma y adiciona la Ley General de Salud en Materia de Cuidados Paliativos (DOF del 05 de Enero de 2009))? Yes/no?

3. Revised General Health Law of Palliative Care Matters (Decreto por el que se reforma y adiciona la Ley General de Salud en Materia de Cuidados Paliativos (DOF del 05 de Enero de 2009)

A. Designating an Agent(s) and Health Care Directives -
It is my understanding that the MX federal legislation provides for a person, in advance, while mentally competent, to designate an agent(s) to act on his/her behalf when s/he cannot act on his/her own behalf after being diagnosed with a terminal illness (or terminal situation) and expected to live less than 6 months. In addition, the legislation sets forth the rights of the patient to determine in advance the health care directives that s/he wants or does not want (Chapter II, Paragraph X and Article 166, Bis 1 and 4). Yes/No?

B. Since the MX federal legislation is specific to a diagnosed terminal situation, with someone expected to live less than 6 months, could this legislation be used (at the federal or Jalisco state levels) beyond the specific language for a more general situation? Yes/no?

4. Using a US durable power of attorney, and living will, in Mexico

It is my understanding that, according to the 1961 Hague agreement, US documents such as durable powers of attorney and ‘living wills’ (health care directives), and which do not expire, can be apostilled, translated into Spanish and recognized here in Mexico (and Jalisco). True?

5. New Legislation for Jalisco?

A. Is there any drafted legislation for Jalisco for the future that allows a durable power of attorney for medical or financial decisions, and will not expire? Yes/no?

B. Is there any drafted legislation for Jalisco providing for legally binding or ‘recognized’ health care directives with similar language as the 2008 MX federal legislation, but goes beyond the limits of someone with a ‘terminal illness (or terminal situation), with less than 6 months to live’? Yes/No?
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Re: Legal questions/can anyone answer/durable POAs & more

Post by Intercasa on Mon Oct 11, 2010 10:35 pm

You'll probably get the best information by posing these questions to a few different notarios as that s their area of expertise and seeing if they all agree on the points and if not see where they differ and their reasoning for such. I don't have any answers for you and I wouldn't want to guess.
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Re: Legal questions/can anyone answer/durable POAs & more

Post by Sherman on Mon Oct 11, 2010 11:06 pm

Thanks for your quick response ....I am posing these questions to several notarios lakeside, one in Guadalajara (yet to be completed) , and 3 attorneys lakeside. Since it sounded like you were doing legal research, I thought this might be up your alley for broadening your own knowledge and education. And, you seem to provide substantive answers, so I was interested in what you had to say.

The notarios are not consistent in their responses. And, in at least one case, they contradict each other. I know from a previous 'life' that if I ask the same questions enough times that I'll start to get some consistency....and then may actually have some information I can use in producing a paper called Life Planning in Jalisco.

Ironically, the best quality 'legal' information I've gotten so far is from a financial planner who works across the US and across Mexico; dual citizenship, bilingual, etc. And, a bright guy. His general legal knowledge so far has 'outshined' others with whom I've spoken or interviewed.

In any event, thanks for your response. Maybe someone else will have a comment or two.

Sherman
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Re: Legal questions/can anyone answer/durable POAs & more

Post by Intercasa on Tue Oct 12, 2010 7:30 am

I doubt an attorney would be able to answer all the questions completely unless they've dealt with the issues frequently, the notarios probably touch on all the issues on a more regular basis.

Some issues I potentially see would be revocation of the POA upon death of the grantor and / or expiration of the POA after 5 years. There are 2 types of poderes, one is a simple one and the other is a more solid one and costs more and is recorded and gives the attorney in fact broader powers and is more recognized due to the fact it is recorded.


Last edited by Intercasa on Wed Oct 13, 2010 6:39 am; edited 1 time in total
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Re: Legal questions/can anyone answer/durable POAs & more

Post by Sherman on Tue Oct 12, 2010 2:54 pm

Well....
In Jalisco, poders expire in 5 years and none are durable. Upon death, none remain in place. A notario signs these. That has been one of the consistent set of answers.

Coahuila does have a durable medical power of attorney in its civil code (that's been confirmed).

I found that not all of the notarios lakeside know that durable powers of attorney are available in 5 states in Mexico. And, not all agree they are recognized here in Jalisco. I know this because I sat across from one of them on two occasions giving him the information and the legal citations.....and he was telling me "he did not believe me" ....until he checked the legal citations on-line in front of me. Then he was stuck.

What has not been mentioned, until just now, is that there is another type of poder which is recorded and gives the attorney broader powers. Thanks very much. This is just the kind of thing I need. I will follow up with this question and go back to one Notario lakeside and one from Guadalajara for their comments.

If you run across anything else that seems to respond to any of my questions, I'd appreciate your comments.

Thanks much.....
Filoli

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Re: Legal questions/can anyone answer/durable POAs & more

Post by Intercasa on Tue Oct 12, 2010 3:36 pm

You might try speaking to a knowledgeable notario in Guadalajara. The ones here locally think they are the best thing since sliced bread just because they speak English and don't think outside the box. I've seen alot of sloppy work and none will take responsibility for their actions if they goof and this is something important.

I expect you to talk to 5 and get 5 different answers and more denial until they look things up. You need a notario who specializes in this stuff, maybe ask some hospital administrators (think biggest and most expensive places in Guad) in Guadalajara whom they might recommend, I doubt it will be anybody locally here.
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Re: Legal questions/can anyone answer/durable POAs & more

Post by espíritu del lago on Wed Oct 13, 2010 6:30 am

Thanks Filoli, I too have an interest in this matter and am sure many others do also! It is wonderful that you have the time and the interest in taking on such an endeavor!

Spencer, also a great BIG THANK YOU for your wealth of knowledge you share with all of us on these various forums which can be tedious ,and an unthankful job at times.

Regards,
Espiritu del lago
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Re: Legal questions/can anyone answer/durable POAs & more

Post by gringal on Wed Oct 13, 2010 11:18 am

We just had our wills made with a newer young notario in town and were quite impressed by his general knowledge and the way he conducted the procedure.....so if you haven't checked him out, here's some info:
BTW, his offices are located behind the Hacienda Ajijic restaurant at that plaza west of town.
Luis Enrique Ramos Bustillos
Notario Publica #2
(376) 766-0190
Speaks English

If anyone has negative input...........please let us know. We've only seen the good side.

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Re: Legal questions/can anyone answer/durable POAs & more

Post by Sherman on Wed Oct 13, 2010 11:31 pm

Thanks Gringal.... on this topic on which I'm working, I've used the person you mentioned, consulted with him and will no longer use him, nor will I recommend him.

On another topic, he may be fine. I'm only addressing the topic at hand.

I've now talked to a few of the notarios lakeside and some attorneys. It has been recommended to me, more than once, to start moving my interviews away from lakeside legal professionals. So, that's what I'm doing to see if additional informational turns up.

I'll post things here as they turn up.
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Re: Legal questions/can anyone answer/durable POAs & more

Post by Intercasa on Thu Oct 14, 2010 7:44 am

My comments apply to all local notarios. Most here, instead of trying to be the best they can be by offering exceptional service and learning more know they can throw out some English and have a captive audience as most people are too scared / lazy to drive to Guadalajara and they allow this to be used to their benefit. There are 5 notarios (there is another who isn't but does acts, his brother is the notario) and not much competition so most don't respond to emails timely, if at all, call you back and do much of anything to "earn" your business or differentiate themselves from the others, they don't have to with the populace supporting their behavior and mistakes.

I'd like to find someone in the city who knows their stuff well and have clients go there if good service is offered. To me good service is:

Calling clients back promptly (within same day)
Returning emails within same day
Giving clients copies of the documents they will sign a few days in advance so they can be reviewed by them or another professional
Carefully reviewing all documents prepared BEFORE clients are in the office and correcting errors instead of hoping the clients find them and then making them wait while corrected.
Taking responsibility for mistakes and paying to correct them instead of telling the client in not so many words that they will have to hire a different attorney to fix the mess.
Not charging junk fees, notarios are limited as to what they can charge but then throw in inflated other costs above and beyond that like charging 1,000 pesos for a document that runs under 100, and not giving a full and detailed disclosure of all fees and costs charged.

Most of the local notarios don't like me as people have had me review their documents and I'll find errors and other times they will have me meet with them after the closing to discuss a mistake that costs the client money, here is a time where they all of the sudden are lacking in their English language skills and then after finally admitting they screwed up, won't fix the problem or pay another to fix it.

The problem is that you can't say to one, "your service is crap, I'm going to Mr. X" because they all offer mediocre service at best.

I do plan on going to the Colegio of Notarios de Jalisco to ask them about recourse against mistakes and the possibility of their organization enforcing rules against them so that clients won't be paying for the mistakes of notarios, supposedly there is recourse, something they never tell you.
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Re: Legal questions/can anyone answer/durable POAs & more

Post by Sherman on Thu Oct 14, 2010 11:13 am

Regarding availability of lakeside legal assistance.....

I reinforce your comments from your list from above and give one example of several available.

For one notario, I went in two weeks in advance and asked what information he needed before my appointment. I wrote 7 pages out and gave it to him 10 days in advance of the appointment, along with a hard copy, and legal citation, of the 2008 MX legislation revised heath care for pallative care. That was in March.

I kept the appointment. It was obvious when I got into the 'paid' consultation that he had not read one line of the 7 pages, including the legislation, which he had never seen before. I know that, because I asked him.

In July, because the same notario had been advising the person who did the LCS health week presentation that turned out to have incorrect and misleading information & for which LCS posted a disclaimer, I went back to see him and ask specific questions about the legislation and the person's presentation.

The notario had been 'advising' that person for months and still never read the legislation and, therefore, completely missed that the legislation is only for terminally ill, with less than 6 months to live. That was the same notario from whom I sat across with the legal citation about a durable medical power of attorney being available in Coahuila (see posting above).

Because of the example above, and more, it has been suggested to me by others, besides Intercasa, that I need to go outside lakeside for any serious legal assistance, advice or information. There have been a lot of other comments, but ones I won't post.

I wonder how difficult or easy it would be to get a list of Notarios from Guadalajara, and some of their specialities. And, I know many will speak English as well. Got any ideas on how to get this done? I wonder if there is a 'Martin Hubbell' for here? Might be?

FILOLI

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Re: Legal questions/can anyone answer/durable POAs & more

Post by Intercasa on Fri Oct 15, 2010 8:00 am

Why limit yourself with only notarios who speak English? People to translate / interpret are easy to find, a good notario who is up on these issues and thinks outside the box is rare. You may have more success looking for the best qualified person first without regard for English skills.

There is an organization of notarios where membership is mandatory. They might be able to guide you.

http://notariosjalisco.org.mx/publico/principal.html
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Re: Legal questions/can anyone answer/durable POAs & more

Post by Sherman on Sat Oct 16, 2010 9:57 am

thanks...one more thing on which to follow-up....but I do appreciate the information.

The next notario I'm interviewing does not speak English. I'm having the questions I posted above translated and then I'll meet with him, with a translater.

One of the things I find interesting is that all of the questions I've posted are directly connected to life as it happens for people who are aging and live in a place (here) where most of us come from another country, with limited family or support systems. To be able to manage our lives, or have our lives managed for us if necessary, we need to have many of the above documents in place.

Wouldn't you think that an astute notario would recognize that and become more knowledgeable in the area to provide quality services???

FILOLI

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Re: Legal questions/can anyone answer/durable POAs & more

Post by Intercasa on Sat Oct 16, 2010 10:00 am

This is not a place where people think outside the box.

This is a place people change their phone numbers almost every year and wonder why people don't call them.

The local notarios, even with the real estate slowdown act like they are at capacity as it is, with the services they offer. I doubt they want to increase the workload.
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Re: Legal questions/can anyone answer/durable POAs & more

Post by Sherman on Tue Oct 19, 2010 8:59 am

Senior.... yes, I agree with your general assessment above. Thanks for your thoughts.

As I move ahead on this, I'll post my 'findings' here.
Thanks again for your input.
Filoli

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