Dealing with a loved one’s incapacity can be incredibly difficult. Seeing someone you care for unable to make decisions or care for themselves is heartbreaking. During such times, obtaining power of attorney can help protect your loved one when they are no longer able to.
But how exactly do you go about getting power of attorney for someone who is incapacitated?
While every situation is unique, we can provide guidance on the general requirements, options, and factors to consider when getting power of attorney for an incapacitated person.
What Exactly is a Power of Attorney?
A power of attorney is a legal document that gives one person the authority to make decisions for someone else. The person granting the authority is called the principal, and the person acting on their behalf is the agent or attorney-in-fact.
There are different types of powers of attorney:
- Financial – Handles money matters like banking, taxes, real estate.
- Healthcare – Makes medical decisions when you can’t.
- Limited – For specific acts like selling property.
- Durable – Remains in effect if you become incapacitated.
Durable powers of attorney are essential if someone becomes unable to make their own choices. The document remains valid even if the principal later becomes incapacitated, ensuring someone can still manage their affairs.
Why Get Power of Attorney for an Incapacitated Person?
Once someone loses the capacity to make decisions, a power of attorney allows their agent to step in and handle important matters like:
- Paying bills, taxes
- Managing investments, property
- Arranging medical care
- Applying for benefits
- Pursuing legal claims
Without it, your only option may be to petition the court for conservatorship or guardianship. This can be a lengthy, public process that strips away the person’s rights. A power of attorney is more efficient and maximizes autonomy.
How to Get Power of Attorney for an Incapacitated Person
If your loved one is already incapacitated and has no power of attorney, don’t panic. You can still obtain one through proper legal procedures. Here are the key steps:
Have Their Mental Capacity Assessed
The first step is having a doctor or psychologist formally evaluate your loved one’s mental capacity. They will determine whether a person still understands the meaning and consequences of being given power of attorney.
If they lack this capacity, you’ll need to pursue conservatorship. But the assessment may find they’re still capable of comprehending and consenting to a power of attorney, with proper explanation.
Consult an Elder Law or Estate Planning Attorney
Only attorneys experienced in the power of attorney and incapacity planning should handle these complex situations. They can:
- Review assessment results and determine options
- Ensure power of attorney complies with state laws
- Customize powers granted based on needs
- Have the person sign a power of attorney if capable
It’s crucial to work with an attorney you trust to protect the person’s interests. Look for someone patient and compassionate.
Follow Signing Formalities
If the person retains the capacity to sign, the attorney can arrange for a proper signing ceremony. This usually involves:
- The principal, attorney, and neutral witnesses
- Explaining the powers granted and the consequences
- Answering all questions and addressing concerns
- Following any state rules for signatures and notarization
Proper execution preserves the power of attorney’s validity. Rushing through signing can lead to future challenges.
File the Power of Attorney
After signing, file copies with institutions that need to recognize the agent’s authority, like banks, investment firms, and healthcare providers. Many require notarized copies before acting on the document.
Seek Conservatorship if No Power of Attorney
If the person lacks the capacity to sign, a conservatorship may become necessary. This involves petitioning the court and providing medical evidence of incapacity. The court will appoint someone, usually a family member, to handle their affairs.
While sometimes unavoidable, conservatorship means losing significant rights and privacy. A power of attorney is far preferable when options allow.
We Can Help With All Your Legal Planning Needs
Taking steps to protect your incapacitated loved one can be a daunting task. An attorney experienced in POA and incapacity can help simplify the process and ensure your family’s needs are met within the law. With strong legal advice, you can have confidence knowing your loved one’s interests are protected now and in the future.
The team at Cary Estate Planning has years of experience in power of attorney and capacity issues. We know this is an emotional time, and our goal is to provide ethical, compassionate counsel tailored to your unique circumstances. If you have questions or need guidance getting Power of Attorney for an incapacitated family member, we are here to help every step of the way. Give us a call today to schedule a free consultation and let us protect your loved one’s wellbeing.
