How to Get Power of Attorney for Someone Who Is Incapacitated

Unfortunately, many factors can contribute to a loved one’s incapacity, such as old age, mental health issues, substance abuse, physical injuries, illnesses, or temporary conditions like comas. If you have a loved one who cannot care for themselves, they must have someone they trust to manage their financial affairs and make important health care decisions on their behalf.

A power of attorney (POA) is a legal document granting an agent (attorney-in-fact) the authority to make critical decisions for another person. However, you may be wondering if you can secure this document after a person has already become mentally incapacitated. Below, you can discover the answer and explore how to handle an incapacitated person’s legal and health care matters.

Table of Contents

• Can I Get a Power of Attorney for Someone Who Is Incapacitated?
• What to Do When a Loved One Becomes Incapacitated
• Which Power of Attorney Can Help My Parent?
• State Laws on the Appointment of Guardians
• The Importance of Planning in Advance

Can I Get a Power of Attorney for Someone Who Is Incapacitated?

No. You cannot obtain a power of attorney for someone already incapacitated. For your loved one to grant a power of attorney, they must have adequate mental capacity when they devise the document. Unfortunately, an incapacitated person doesn’t possess the requisite mental state.

Planning in advance is crucial to honoring someone’s wishes and meeting their future needs. By setting up a POA before it is needed, you and your loved one can avoid potential legal complications and secure peace of mind for everyone involved.

What to Do When a Loved One Becomes Incapacitated

Here are some steps to follow when a loved one becomes incapacitated:

Step 1 – Seek Medical Attention

Seek a physician’s evaluation to understand the level of your loved one’s incapacity. They can also present the necessary evidence to determine legal incapacitation.

Step 2 – Check for Legal Documents

Determine whether your loved one has already filed a power of attorney document or advance health directive form. To find out whether your loved one made a power of attorney or advance directive, you can follow these tips:

1. Check their personal documents. Look in their home safe or another location where they keep other important documents, such as birth certificates, marriage licenses, or other governmental, financial, and legal records.
2. Contact their attorney. Reach out to their lawyer for legal assistance, especially if they have previously worked with an estate planning professional or an elder law attorney. They may have collaborated with their attorney to prepare a power of attorney or advance directive. If so, the attorney may be able to provide copies or further information.
3. Check with other organizations. While they were still mentally competent, your loved one might have provided records of their power of attorney or advance directive form to a health care provider or financial institution. Contact their bank, primary care provider, and other institutions they were affiliated with to see if they left specific requests for medical and financial matters.
4. Review public records. Your loved one’s power of attorney might be recorded with local government offices. Check public records to determine if they filed their POA in this way.
5. Ask family members or close friends. A family member or close friend may know if your loved one completed a power of attorney or an advance directive. They might even have information on the location of these documents.

Step 3 – Consider Legal Options

Some legal options you can pursue to make decisions for an incapacitated loved one without a POA include the following:

• Come to a family agreement in which your family collectively makes decisions regarding your parent’s care and finances.
• Use medical and social services available in your community.
• Apply for government benefits on your parent’s behalf.
• Appoint a representative payee for Social Security benefits.
• Manage their assets through a trust or another legal arrangement.

Step 4 – Consider Guardianship or Conservatorship

A conservatorship is a legal arrangement that lets you manage your loved one’s financial and legal matters. The court can designate a conservator to handle these matters for the incapacitated person. A guardianship involves the court appointing someone to take on personal duties, such as health care decisions and managing living arrangements.

The terms and responsibilities of guardianship and conservatorship can vary between states. While the overall intentions of the court generally stay the same, it’s important to investigate the finer details of your jurisdiction. Some regions may use different terminology or vary the duties and authority granted.

Step 5 – Contact an Estate Planning Lawyer

Consult a lawyer for legal services. Research estate planning and elder law attorneys in your area to find one qualified to help with your situation. They can guide you through the process and suggest alternative actions if you cannot find your loved one’s power of attorney.

Which Power of Attorney Can Help My Parent?

Before a parent becomes incapacitated, they can complete one of the following documents that can help them once they become incapacitated:

• Durable power of attorney: This document remains effective after your parent becomes incapacitated and empowers the agent to make financial and legal decisions.
• Limited power of attorney: This document provides the agent with authority for specific tasks or a limited period. It can apply through periods of incapacitation if your parent notes this preference in the document.
• Medical power of attorney: A medical power of attorney grants the attorney-in-fact durable powers to make health care decisions on your parent’s behalf. This document is crucial if your parent can no longer make medical decisions independently.
• Financial power of attorney: This limited power of attorney provides the agent the right to make financial decisions on your parent’s behalf.
• Springing power of attorney: A springing power of attorney only becomes effective upon certain events, so it may become effective upon your parent’s incapacitation if they note this requirement in their document with terms allowing for you to get emergency power of attorney.

Choosing the right type of power of attorney depends on your parent’s needs and circumstances. It is never too late to start thinking about the future. Instating the proper documents now can save immense stress during a future emergency.

Other Documents To Consider

In addition to a power of attorney, other estate planning documents can help you plan for the future:

• Advance directives: These allow your loved one to specify medical treatment preferences. You can also use an advance directive form to appoint a health care agent.
  • It typically contains a living will, a power of attorney, and a DNR order (if applicable).
• Living wills: These documents outline wishes regarding life-sustaining treatments. A living will can be an invaluable resource when a loved one sustains a severe injury or develops a terminal sickness.
• Health care proxy: Similar to a medical power of attorney, a health care proxy designates someone to make medical decisions if your loved one is incapacitated.

State Laws on the Appointment of Guardians

Here are the state laws on the appointment of guardians:

The Importance of Planning in Advance

Planning in advance is crucial to honoring your loved one’s wishes and ensuring their needs are met if they become incapacitated. Encourage them to sign a durable POA while still healthy and competent. This way, you can avoid the challenges that may arise amid their incapacitation, including feeling powerless and fighting for legal authority via guardianship or conservatorship.

A durable POA lets your loved one choose an agent they trust to make legal, financial, and medical decisions on their behalf. It also grants an agent more expansive rights when compared to alternatives.

This proactive approach respects their autonomy while providing peace of mind for you and your loved one.