February
20, 2008
In
the Matter of a Mail Dispute Between
OLA
AND HAROLD SLOAN
and
LLOYD MCAMIS
P.S. Docket No. MD 08-18
APPEARANCE FOR DISPUTANTS
OLA AND HAROLD SLOAN:
Ola and Harold Sloan
APPEARANCE FOR DISPUTANT
LLOYD MCAMIS:
Max Main, Esq.
Bennett, Main & Gubbrud, P.C.
INITIAL
DECISION
This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) Section 616.21, which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to Ola Sloan at 836 Kingsbury Street, Apt. 305, Belle Fourche, SD 57717-1947. The Belle Fourche Postmaster is currently holding the mail.
Neither party filed a sworn written statement, as required by the Rules of Practice, 39 C.F.R. §965.5, or anything else in this proceeding. The following findings of fact are based on the material forwarded by the United States Postal Service Law Department, Utah Office, including documents previously provided to the post office by the parties.
FINDINGS OF FACT
1. Harold Sloan is the husband of Ola Sloan. Lloyd McAmis is Ola’s son from a previous marriage. (Law Department forwarding letter; Power-of-
Attorney attached at Tab 3).
2. On November 3, 2006, Ola Sloan executed a General Power-of-
Attorney, naming her two sons, Lloyd and Keith McAmis, as her co-agents, with either having full authority if the other should die or otherwise become unable to act. Keith McAmis has since died. This Power-of-Attorney was recorded in the Butte County, South Dakota Register of Deeds. (Law Department forwarding letter; Power-of-Attorney attached at Tab 3; attorney Max Main December 17, 2007 letter attached at Tab 7).
3. On January 16, 2007, Ola Sloan signed a sworn, notarized document titled, “Revocation of power of attorney.” The handwritten document states that she is revoking the November 3, 2006 power of attorney, and that her intent is for Harold Sloan to handle her financial matters and health care choices. This document was recorded in the Butte County, South Dakota Register of Deeds. (Law Department forwarding letter; Revocation attached at Tab 4).
4. On March 12, 2007, Dr. Hewitt signed an affidavit stating that he had been Ola Sloan’s physician for ten years and that, in his opinion, Ola Sloan was incompetent when she signed the purported revocation of power of attorney on January 16, 2007. (Law Department forwarding letter; Hewitt affidavit attached at Tab 7).
5. In March 2007, Lloyd McAmis submitted a Change-of-Address Order to the Belle Fourche Post Office, directing that mail addressed to Ola Sloan at 836 Kingsbury Street, Apt. 305, in Belle Fourche be forwarded to Lloyd’s address in Arvada, Colorado. (Law Department forwarding letter; COA record attached at Tab 1; Lloyd McAmis note attached at Tab 3).
6. Sometime thereafter, Ola Sloan called the Belle Fourche Post Office and asked why she was not receiving mail. When told of the forwarding order, she asked that the forwarding order be cancelled, and the post office honored that request. (Law Department forwarding letter; COA record attached at Tab 1).
7. In October 2007, Lloyd McAmis submitted another Change-of-Address Order to the Belle Fourche Post Office, again directing that mail addressed to Ola Sloan be forwarded to his Colorado address. He included a copy of the November 3, 2006 Power-of-Attorney. (Law Department forwarding letter; COA record attached at Tab 2; Lloyd McAmis note attached at Tab 3).
8. In November 2007, Harold Sloan presented the Belle Fourche Post Office with a copy of the “Revocation of power of attorney.” At the same time, Harold Sloan also submitted a Change-of-Address Order directing that mail addressed to both Ola and himself at 836 Kingsbury Street be forwarded to another address in Belle Fourche. (Law Department forwarding letter; COA record attached at Tab 5).
9. After the parties were notified by the Belle Fourche Postmaster that the disputed mail would be held until the dispute was resolved, the attorney for Lloyd McAmis submitted a copy of Dr. Hewitt’s affidavit.
DECISION
Lloyd McAmis’ position is that the November 2006 Power-of-Attorney is still valid because Ola was not competent to revoke it and that the Power-of-Attorney gives him the authority to direct delivery of his mother’s mail.
The position of Ola and Harold
Sloan, although not stated anywhere in the case file other than in the Law
Department forwarding letter, is that the revocation was valid and that Ola is
entitled to receive her own mail.
The sole issue to be resolved is whether Lloyd McAmis has presented sufficient evidence to demonstrate that his mother was not competent to revoke the November 2006 Power-of-Attorney. Otherwise, she is clearly entitled to direct the delivery of mail addressed to her.
This matter has apparently not been presented to any court in South Dakota. Dr. Hewitt’s affidavit does not discuss any facts on which his opinion is based, nor does he state when he believes Ola became incompetent. Faced with the relatively short time between the execution of the Power-of-Attorney and its revocation, the fact that the revocation appears to be in Ola Sloan’s handwriting and is clear and legible,[1] and the fact that Ola called the post office to question her mail delivery, I find that Dr. Hewitt’s affidavit alone is not sufficient to establish Ola Sloan’s incompetence.
This decision deals only with delivery of mail. It does not attempt to resolve any other disputes between the parties. If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order. POM §616.3.
The Judicial Officer should issue an Order to the Belle Fourche Postmaster directing that mail addressed to Ola Sloan at 836 Kingsbury Street, Apt. 305, Belle Fourche, SD 57717-1947, be delivered as directed by Ola and Harold Sloan.
Bruce
R.
[1] This is based on a comparison with her signature on
the Power-of-Attorney itself in November 2006.