This led to the preparation of a will disinheriting her daughter in favor of a neighbor, as well as a power of attorney preventing the daughter from caring for her.
In June 2015, the Legnica District Prosecutor’s Office filed an indictment in the case.
Crime report
The criminal proceedings were initiated by a request from the daughter of the 71-year-old seriously ill woman for the prosecutor to apply to the court to have her mother legally incapacitated. The woman could not do so herself because the neighbor who had taken over her care prevented her from accessing the apartment and the necessary documents. The neighbor’s actions led to the signing, in the presence of a notary, of an appropriate power of attorney, as well as the preparation of a will disinheriting the daughter in the neighbor’s favor.
Circumstances surrounding the signing of the notarial deeds
The notarial deeds were prepared by Krzysztof W., now 54 and formerly a notary Krzysztof W.. This took place on 2 and 17 December 2014 at the testator’s apartment. It was established that at the time the woman had completely lost the ability to understand the significance of her actions and to direct her conduct. She was unable to make a conscious decision or express her will.
This condition resulted from profound dementia caused by pathological brain damage. Doctors diagnosed it in a forensic psychiatric opinion dated 5 April 2014. Later opinions, from February 2015, confirmed the earlier findings.
Importantly, in connection with her mother’s health, the daughter had already sent a letter in February 2014 to all notaries in Legnica, drawing attention to the victim’s condition should she wish to make declarations of intent. The letter reached the defendant’s notarial office on 28 February 2014, ten months before the notarial deeds were prepared.
Psychiatric experts stated that, because of impaired cognitive processes, the woman had no substantive contact with the reality around her and therefore lacked the ability to express her will consciously and intentionally, as well as the ability to assess the actions she was taking.
The notary’s lack of due diligence and its consequences
It was not necessary to have specialist knowledge to assess the victim’s state of health; asking a few questions about everyday life would have been sufficient. This would have made it possible to assess her “grounding” in reality. In view of this, the prosecutor concluded that, when preparing notarial deeds containing the sick woman’s declarations, the notary had obviously failed to fulfill his duty to ascertain that she fully understood the content and significance of the deeds and that they were consistent with her will. Exercising due diligence would clearly have shown that the woman was suffering from profound dementia and was unable to understand the content of the notarial deed or express her will in that regard. She was therefore unaware of the dispositions concerning her property that were made at the time.
The notary as a person of public trust
A notary exercises state authority, including auxiliary tasks in the administration of justice. As a person of public trust, under Article 49 of the Law on Notaries, he is required to exercise particular care when performing his duties. The due diligence expected of a notary as a professional is professional diligence, imposing higher standards than “ordinary” due diligence. This diligence should be demonstrated through the notary’s expertise and justified inquisitiveness, necessary for the proper performance of a notarial act.
Failure to exercise due diligence may lead to the devaluation and destruction of the concept of a person of public trust acting in the public interest, which in turn may contribute to reducing the stability, certainty and legal security guaranteed by notaries in implementing and observing the law. It is therefore an omission resulting in a violation of the public interest.
Charges of committing an official offense
Krzysztof W. was therefore charged with two official offenses involving failure to perform his official duties (Article 231 § 1 of the Penal Code). The offense carries a penalty of between one month and three years’ imprisonment.
Judgment of March 2016
Krzysztof W. pleaded not guilty. However, in a judgment dated 4 March 2016, the District Court in Legnica found him liable and sentenced him to a fine of PLN 6,000. The judgment is not final.
Ruling concerning the neighbor’s criminal liability
The criminal proceedings did not establish that the sick woman’s neighbor, who had been caring for her for some time, had unlawfully disposed of her property. The proceedings in this respect, concerning an act under Article 286 § 1 of the Penal Code, were discontinued because there was insufficient evidence to substantiate that an offense had been committed. It was also not established that the woman had acted in collusion with the notary.
The prosecutor’s civil action
At the same time as the criminal proceedings, the Legnica Regional Prosecutor’s Office undertook civil action aimed at invalidating the notarial deed in the form of the power of attorney. Also in June 2015, the prosecutor filed a lawsuit seeking a declaration that the legal act was void because of a defect in the declaration of intent. The claim was upheld.
On 6 October 2015, the Legnica District Court issued a judgment declaring that the legal act granting the neighbor power of attorney was void. The defendant accepted the claim. The prosecutor did not seek to invalidate the will insofar as it concerned the declaration of intent made by the sick woman; her husband, who was also alive at the time, was likewise a testator. The matter was left to the parties, who may independently undertake procedural actions in this case.
Liliana Łukasiewicz, press spokeswoman for the Legnica Regional Prosecutor’s Office/ii