How To Get Power Of Attorney For Someone Who Is Incapacitated

How To Get Power Of Attorney For Someone Who Is Incapacitated

Wondering how to get power of attorney for someone who is incapacitated? 

In this article, you’ll learn about: 

  • if you can get a power of attorney for someone who is incapacitated
  • how to get decision-making abilities for someone that’s incapacitated
  • what a POA, conservatorship, and guardianship are
  • how to find out if someone who is incapacitated has a power of attorney
  • getting a POA for someone in the hospital, in a coma, or an incapacitated parent

Let’s dig in. 

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Can You Get Power Of Attorney When A Person Is Incapacitated?

No, you can’t get power of attorney for someone incapacitated.

This is because they must be mentally competent to grant it. 

The principal needs to understand and agree to the document. 

If someone is incapacitated, they can’t give informed consent for a POA.

In such cases, a court may appoint a guardian or conservator to manage their affairs instead.

You must go through a court process to become their guardian or conservator. 

This process involves:

  • filing a petition
  • notifying interested parties
  • attending a court hearing 

If approved, the court will grant you the authority to make decisions on the incapacitated person’s behalf.

Read More: Do You Need Guardianship If You Have Power Of Attorney

Things To Know About Getting A Power Of Attorney For Someone Who Is Incapacitated

Let’s define some things you’ll need to know about how to get power of attorney for someone who is incapacitated.

What Is A Power Of Attorney?

A power of attorney for an incapacitated person is a legal document. 

It lets someone, called the principal, give another person, called the agent, the authority to act on their behalf. 

The agent can make decisions and sign documents for the principal. 

It can be used for financial, medical, or other matters. 

The power can be limited or broad, depending on the principal’s choice. 

It can also be temporary or lasting, based on the document’s terms.

There are four main types of power of attorney for someone who is incapacitated:

  • General Power Of Attorney: A general power of attorney grants the agent broad authority to manage the principal’s affairs, including finances, property, and legal matters.
  • Limited Or Special Power Of Attorney: This type gives the agent specific powers for a particular task or situation, like selling a property or managing a single bank account.
  • Durable Power Of Attorney: This type remains in effect if the principal becomes incapacitated, allowing the agent to continue managing the principal’s affairs during their incapacity.
  • Medical Power Of Attorney: This type lets the agent make healthcare decisions for the principal if they cannot make those decisions themselves due to illness or incapacity.

Read More: Can You Have More Than One Power Of Attorney

What Is Conservatorship?

Conservatorship is a legal arrangement. 

It happens when a court appoints a person, called the conservator, to manage the affairs of someone else, called the conservatee. 

The conservatee is unable to make decisions or care for themselves, often due to:

  • age
  • illness
  • disability 

The conservator can make financial, medical, or personal decisions for the conservatee. 

The court supervises the conservator to ensure the conservatee’s best interests are protected.

What Is Guardianship?

Guardianship is a legal arrangement. 

It appoints a person, called the guardian, to make decisions for another person, called the ward. 

The ward is usually someone who cannot make decisions for themselves, like:

  • a minor 
  • an incapacitated adult 

Guardianship can cover personal, financial, or healthcare decisions. 

A court supervises and approves the guardian’s actions. 

Guardianship ends when the ward regains capacity or becomes an adult.

Or when the court decides it’s no longer needed.

Read More: Does Guardianship Override Power Of Attorney?

How To Get Power Of Attorney For Someone Who Is Incapacitated

To get power of attorney for an incapacitated person, follow these steps:

  1. Determine If A Power Of Attorney Exists: Check if the person already has a power of attorney in place that activates upon incapacitation, called a durable power of attorney.
  2. Consult A Lawyer: If no power of attorney exists, consult a lawyer to understand local laws and procedures.
  3. File A Petition For Guardianship: If needed, request a court to appoint you as the incapacitated person’s guardian.
  4. Attend A Hearing: The court will schedule a hearing to review the petition and hear from all relevant parties.
  5. Obtain A Medical Evaluation: The court may require a medical evaluation to confirm the person’s incapacity.
  6. Receive Court Approval: If the court approves your petition, you will be granted the authority to act on the incapacitated person’s behalf.

An incapacitated person cannot give power of attorney due to their inability to understand or make decisions. 

In these cases, guardianship is required. 

It is a legal process in which a court appoints a guardian to handle the incapacitated person’s affairs. 

The guardian makes decisions about finances, healthcare, and personal care in the person’s best interest. 

Unlike a power of attorney granted by the individual, the court establishes and oversees guardianship.

This ensures the incapacitated person receives proper care and protection.

How To Find Out If Someone Has Power Of Attorney

To find out if someone has power of attorney, ask the person directly. 

If they claim to be an agent, request to see the legal document. 

Examine the document to verify its validity, scope, and duration. 

Check with the principal, if possible, to confirm the agent’s authority. 

If the principal is incapacitated, contact their lawyer.

They may have a copy of the power of attorney document. 

Keep in mind that privacy laws may limit the information you can access.

Read More: How To Get An Emergency Power Of Attorney

How To Get Guardianship Of An Adult

To get guardianship of an adult, follow these steps:

  1. Determine If Guardianship Is Necessary. Assess the adult’s ability to make decisions and manage their life.
  2. Research Local Laws. Guardianship rules vary by state or country, so understand the legal requirements in your area.
  3. Gather Documentation. Collect medical records, financial documents, and other evidence to support the need for guardianship.
  4. Consult A Lawyer. Work with a legal professional who specializes in guardianship cases for guidance and representation.
  5. File A Petition. Submit the required paperwork to the appropriate court to request a guardianship.
  6. Notify Relevant Parties. Inform the adult, their family, and other interested individuals about the guardianship request.
  7. Attend A Court Hearing. Present your case to a judge, who will review the evidence and decide if guardianship is in the adult’s best interest.
  8. Obtain Court Approval. If the judge approves, you will receive legal documents granting you guardianship.

How To Get Power Of Attorney For Someone

Let’s look at a couple of different scenarios where you’d want to get a POA for someone. 

We’re covering how to get power of attorney for someone who is:

  • in the hospital
  • mentally incapable 
  • an incapacitated parent
  • in a coma

All these scenarios are similar, but they need different steps.

How To Get A Power Of Attorney When Someone Is In The Hospital

To get a power of attorney when someone is in the hospital, follow these steps:

  1. Speak with the person in the hospital to confirm they agree to give you power of attorney.
  2. Determine the type of power of attorney needed, such as financial or medical.
  3. Obtain a power of attorney form, either online or from an attorney.
  4. Fill out the form, including the principal’s and agent’s information, and the powers granted.
  5. Have the principal sign the form in the presence of witnesses, if required.
  6. Notarize the document, if necessary, by having a notary public witness the principal’s signature.
  7. Keep the original document in a safe place and provide copies to relevant parties, such as banks or healthcare providers.

How To Take Power Of Attorney When One Is Mentally Incapable

To obtain power of attorney for someone mentally incapable, follow these steps:

  1. Determine If The Person Is Legally Incapable: A medical professional must assess and confirm the person’s incapacity with a letter of incapacity for POA.
  2. Check For An Existing Power Of Attorney: If there’s a document in place, the appointed agent should act on the person’s behalf.
  3. If No Power Of Attorney Exists, Consider Guardianship Or Conservatorship: Apply to a court to appoint a guardian or conservator to manage the person’s affairs.
  4. Provide Documentation: Submit medical evaluations, personal information, and reasons for seeking guardianship or conservatorship to the court.
  5. Attend The Hearing: A judge will review the case and make a decision. If approved, the court will grant authority to manage the person’s affairs.

How To Get Power Of Attorney For Incapacitated Parent

Wondering what to do when a parent becomes incompetent?

To get power of attorney for an incapacitated parent, follow these steps:

  1. Determine the type of power of attorney needed, such as financial or medical.
  2. Consult with a lawyer to draft the document, including the necessary terms and conditions.
  3. Obtain a physician’s statement confirming the parent’s incapacity.
  4. Present the document to the incapacitated parent if they are still able to understand and consent.
  5. If the parent cannot consent, pursue guardianship or conservatorship through the court system.
  6. Sign the power of attorney document in the presence of a notary public and witnesses, if required.
  7. File the document with appropriate institutions, like banks or healthcare providers, as needed.

How To Get Power Of Attorney For Someone In A Coma

To get power of attorney for someone in a coma, follow these steps:

  1. Check For Existing Documents: Find out if the person has a durable power of attorney or healthcare directive in place. If so, follow the instructions in the document.
  2. Consult A Lawyer: Speak with a lawyer experienced in estate planning or elder law to understand the legal process and get advice on the necessary steps.
  3. Obtain A Doctor’s Statement: Request a written statement from the person’s doctor confirming their incapacity and inability to make decisions.
  4. Prepare The Documents: Have the lawyer draft a durable power of attorney or healthcare directive, depending on the situation and jurisdiction.
  5. File A Petition: If necessary, file a petition for guardianship or conservatorship in the appropriate court. This step may be required if the person did not have a durable power of attorney or healthcare directive in place.
  6. Attend The Hearing: Go to the court hearing, present the evidence, and request that the judge grant you the authority to act on the person’s behalf.
  7. Obtain Court Approval: If the judge approves your request, you will receive the legal authority to act as the person’s agent or guardian.
  8. Manage Affairs: Begin managing the person’s financial, healthcare, and other needs as their agent or guardian, following the terms of the power of attorney or court order.

Can Someone Get Power Of Attorney Without Consent?

No, someone cannot get power of attorney without consent. 

The principal must voluntarily give authority to the agent. 

The principal needs to be mentally competent when signing the document. 

In most cases, a notary public or witnesses are required to ensure the principal’s consent is genuine.

This prevents you from obtaining power of attorney without consent.

FAQs About How To Get Power Of Attorney For Someone Who Is Incapacitated

These are other questions we get about how to get power of attorney for someone who is incapacitated.

What Happens If You Become Incapacitated Without A Power Of Attorney

If you become incapacitated without a power of attorney, you lose control over decisions. 

Family members or friends cannot automatically make decisions for you. 

A court may need to appoint a guardian or conservator to manage your affairs. 

This process can be time-consuming, expensive, and stressful. 

To avoid this, create a power of attorney before becoming incapacitated. 

This lets you choose who makes decisions for you and can save your loved ones from difficulties.

Can Dementia Patient Revoke Power Of Attorney

A dementia patient can revoke a power of attorney.

But only if they have the mental capacity to understand the decision. 

Let’s say the patient is not able to comprehend the nature and consequences of revoking the power of attorney.

They cannot legally revoke the power of attorney. 

A court or medical professional may need to assess the patient’s mental capacity.

This will help them to determine whether they can revoke the power of attorney.

How To Get Power Of Attorney For Someone Who Is Incapacitated

Are you wondering how to get power of attorney for someone who is incapacitated? 

Fill out the form below. 

Our attorneys can help you navigate being able to make decisions like: 

  • who their doctor should be
  • what treatments they can get
  • whether they should be on life support
  • whether they want a Do Not Resuscitate
  • if the doctor will follow their religious beliefs and preferences

Talk soon. 

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