When a loved one becomes incapacitated—whether due to illness, injury, or cognitive decline—you may find yourself in a position where critical decisions must be made on their behalf. But what happens when they haven’t already assigned someone as their power of attorney (POA)? If you’re wondering how to get power of attorney for someone who is incapacitated, it’s not as simple as filling out a form.
This situation is legally complex and emotionally taxing. That’s why involving a qualified attorney is crucial to ensure your loved one’s rights are protected and your legal authority is properly established.
What Is Power of Attorney?
Power of Attorney is a legal document that authorizes someone else—the agent or attorney-in-fact—to make decisions on behalf of another person (the principal). These decisions may include:
- Managing financial accounts
- Paying bills
- Handling real estate transactions
- Making medical and care-related decisions (if it’s a healthcare POA)
A person must be mentally competent at the time of signing a POA. If they are already incapacitated, a POA cannot be executed retroactively. That’s when the legal pathway becomes more complex.
You Can’t Get POA After Incapacity—But There Are Options
Here’s the most important takeaway: You cannot obtain power of attorney for someone who is already incapacitated. POA requires the principal to have the mental capacity to understand and voluntarily sign the document. If your loved one no longer has capacity, the law offers another route: a court-appointed guardianship or conservatorship.
Step-by-Step: What to Do If Someone Is Already Incapacitated
If you’re trying to figure out how to get power of attorney for someone who is incapacitated, what you actually need is to petition the court for legal authority. Here’s how that process generally works:
1. Determine the Level of Incapacity
A physician will typically need to certify that the person is no longer able to manage their affairs. Medical records and a formal statement from a doctor will be essential in establishing incapacity.
2. Petition the Court
File a petition in the county probate court to become your loved one’s guardian (for personal decisions) or conservator (for financial decisions). You may petition for one or both roles, depending on the circumstances.
3. Notify Interested Parties
The court will require that other close family members be notified of your petition. They may choose to support or contest it.
4. Court Evaluation and Hearing
A court investigator or guardian ad litem may be appointed to evaluate the situation. A hearing will then be scheduled to determine whether the appointment is in the best interest of the incapacitated person.
5. Court Approval and Letters of Appointment
If granted, you’ll receive legal documentation allowing you to act on the person’s behalf. This may be limited or broad in scope, depending on the court’s ruling.
Why a Lawyer Is Essential
While it may be tempting to go it alone, here’s why legal counsel is invaluable in these cases:
- Accurate documentation: Probate courts are strict. A single mistake on the petition can delay or derail your case.
- Court representation: An attorney will represent you at the hearing and help defend your qualifications if anyone contests your petition.
- Tailored strategy: Your family dynamics and the person’s condition are unique. A lawyer can help customize your approach and anticipate problems.
- Post-appointment compliance: Once appointed, you’ll have legal duties such as filing reports. An attorney ensures you stay in compliance.
Cary Estate Planning has guided many families through this process with professionalism and empathy. Learn more about their services at Cary Estate Planning.
Common Challenges in Getting Legal Authority
Even with good intentions, families often run into obstacles:
- Disputes between siblings or family members
- Missing or incomplete medical records
- Delays in court scheduling
- Concerns over elder abuse or financial exploitation
An experienced attorney can help you navigate these hurdles and advocate for your loved one’s best interests.
What Happens After You’re Appointed?
Once you become a court-appointed guardian or conservator, you’ll have fiduciary responsibilities. This includes acting in the person’s best interest, managing finances responsibly, and submitting reports to the court. Failing to fulfill these duties can lead to legal consequences.
Having legal support can make the ongoing responsibilities more manageable and help ensure you make decisions that will stand up to scrutiny.
Can You Prevent This Situation in the Future?
Yes. If your loved one is still mentally competent, it’s not too late to execute a durable power of attorney. This document remains valid even if they become incapacitated later. Encourage open conversations with aging parents or family members about creating POA documents while they still have capacity.
A proactive estate plan saves money, stress, and time for everyone involved.
When to Contact an Attorney
If your loved one is showing signs of mental decline and has no POA in place, now is the time to act. Whether you need to:
- Understand if your loved one still has capacity
- File for guardianship or conservatorship
- Draft new estate planning documents before it’s too late
…an experienced estate planning attorney can guide you through the appropriate legal path.
The legal system is complex, especially when emotions are high and loved ones are involved. The risks of delay or error are too great to go without help.
Understanding how to get power of attorney for someone who is incapacitated is only the beginning. To protect your family, your loved one’s dignity, and your own peace of mind, speak with a qualified attorney.
To learn more about how Cary Estate Planning supports families through every stage of incapacity and guardianship planning, visit Cary Estate Planning.
