Can a Power of Attorney release unpublished literary works?

July 21, 2015 Stuart Clark Capacity, Ethical Issues, Power of Attorney Tags: , , , , , 0 Comments

This past week Harper Lee published Go Set a Watchman, her first book since To Kill a Mockingbird was first released in 1960. While the book has been released to much fanfare, becoming the most pre-ordered book in the publisher’s history, an equally as interesting story (at least to an estates lawyer) has emerged regarding questions surrounding Ms. Lee’s capacity, and whether it was truly ever Ms. Lee’s intention to have the book released.

As recently outlined in an article in Bloomberg, Go Set a Watchman is a sort of “lost manuscript” of Ms. Lee’s, having itself been written in the mid-1950s before To Kill a Mockingbird was ever written. It was apparently rediscovered by Lee’s lawyer while recently looking through a safety deposit box. Ms. Lee herself is presently 89 years old and resides in a nursing home, having previously suffered a stroke in 2007. Much of her daily life is now apparently managed by her Power of Attorney.

Ms. Lee famously rarely ever spoke publically following the release of To Kill a Mockingbird, having become an almost sort of social recluse, never publishing any further works or giving interviews. To this effect, when news broke that Go Set a Watchman would be published, and that Ms. Lee’s Power of Attorney had supposedly played a prominent role in seeing to its publication, questions immediately emerged regarding whether it was ever truly Ms. Lee’s intention to release Go Set a Watchman.  While those around Ms. Lee are quick to point out that in their opinion Ms. Lee is capable, and has consented to the release of Go Set a Watchman, as outlined in the Bloomberg article the questions still remain.

Without commenting on the specifics of Ms. Lee’s scenario, the supposed fact pattern itself, whereby a famous novelist for decades refuses to give interviews or publish any further works, only to allegedly later have their unpublished works released by their Power of Attorney, offers an interesting hypothetical. In Ontario, presuming that there are no further restrictions in the Power of Attorney document itself, an Attorney for Property may do anything on behalf of the grantor except execute a new Will. To this effect, if such a famous novelist had executed a standard Power of Attorney for Property, and their Attorney for Property later discovered unpublished works, it would be fully within the rights of the Attorney for Property to release such works on behalf of the grantor.

From a practical standpoint, should such a novelist wish to execute a Power of Attorney for Property, and should they not want their unpublished works to be released, it would likely be as simple as including a carve out in the Power of Attorney which would simply provide that the Attorney for Property did not have the authority to consent to the release or in any way deal with the unpublished works. Without such a provision being included however, the Attorney for Property would arguably have the authority to consent to the release of the unpublished works on behalf of the grantor.

Thank you for reading.

Stuart Clark

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