When someone becomes mentally incapacitated, a family member or friend will usually need to step in to serve as a caretaker and handle their affairs. Depending on the extent of the person’s incapacitation, they may need assistance with their finances, arranging their living situation, making important medical decisions, or all of the above.
It’s relatively easy for your spouse to step in and handle these affairs as they naturally have the legal authority to make important decisions on your behalf, but it can be difficult for others—even your parents, siblings, and children—to handle your affairs without the proper legal authorization. In fact, even your spouse can’t access your personal financial accounts, so taking control of your finances will be difficult for anyone.
The legal system provides two solutions for this potential problem: you can issue a durable power of attorney, or your caretaker can petition for an adult guardianship or conservatorship. Both options provide you with an authorized agent to handle your affairs, but they go about it in different ways. A power of attorney is voluntarily issued and typically doesn’t take effect until you become incapacitated, but you must have a sound mind to issue one. Unfortunately, that means a power of attorney isn’t an option when you are already incapacitated.
What is a power of attorney?
A power of attorney is a legal contract where the signer (the principal) appoints an agent (the attorney-in-fact) to legally handle their affairs. Most power of attorney agreements offer general, unlimited authority to the agent, but they can also be limited to certain activities or aspects of the principal’s estate. A power of attorney may issue immediate authority to the agent, or it can withhold authority until the principal becomes incapacitated. In the latter scenario, the agreement typically doesn’t transfer authority until a physician or psychologist issues a certificate of incapacitation. Until that point, the principal retains full control over their estate and decision-making abilities.
There are two types of power of attorney agreements: a financial power of attorney, and a healthcare power of attorney. As the names imply, a financial power of attorney offers control over your assets and your estate, while a healthcare power of attorney allows the agent to consult with your physicians, access private medical records, make important medical decisions, and make arrangements for your living situation. Some states allow you to issue a joint power of attorney to cover both subjects, though it’s more common to see separate powers of attorney for financial and healthcare-proxy authority.
How to obtain a power of attorney
An experienced estate planning attorney should be able to draft a power of attorney fairly quickly depending on the complexity of your situation. For simple, general powers of attorney, the process could take less than an hour. You’ll start with a consultation to discuss your needs, and the attorney will make recommendations as to what provisions the agreement should contain. Once the agreement is drafted, you’ll sign the power of attorney in the presence of a notary public (often the lawyer’s secretary or a full-time notary at the law firm). The agreement takes effect as soon as you sign it, though the attorney-in-fact may not necessarily be able to act as your agent until you become incapacitated.
Remember that a power of attorney can only be issued by an adult with a sound mind. The principal should understand what it means to issue power of attorney, who the attorney-in-fact will be, what the attorney-in-fact’s authority entails, and when the attorney-in-fact can step in to make decisions on their behalf. If the principal doesn’t clearly comprehend one or more of these things, he or she is mentally unfit to sign a power of attorney.
Providing for a power of attorney in a living will
If you have a family member or friend who has become incapacitated and doesn’t have a power of attorney in place, check to see if they’ve included provisions for a healthcare proxy in their living will. Sometimes referred to as an advance directive, a living will establishes an individual’s preferences for healthcare treatment and often includes directions regarding resuscitation (such as a do-not-resuscitate order), artificial life support, and palliative care (treatments to alleviate pain and suffering). When properly prepared, a living will should also nominate someone to serve as the individual’s healthcare proxy, which is the equivalent to a healthcare power of attorney.
The alternative to a power of attorney – guardianship and conservatorship
In the event you become incapacitated and you do not have a power of attorney or a living will, your caretaker will need to petition the court for guardianship and/or conservatorship in order to handle your affairs. Though the terms are often used synonymously, guardianship technically provides someone with the authority to manage your living situation and healthcare, while conservatorship gives someone the authority to manage your assets. Most incapacitated adults have a guardian and conservator (often the same person) to handle all of their affairs, but it’s not uncommon to see adults who are partially incapacitated with just one or the other.
How to initiate an adult guardianship or conservatorship
Guardianship and conservatorship involve involuntarily taking away an adult’s decision-making abilities, so they’re never taken lightly. Both can require lengthy court proceedings with an investigation and a hearing, so you’ll need an attorney to navigate the complex process.
If you would like to serve as the caretaker to a family member or friend who is incapacitated, here’s how to go about the process of becoming their guardian and/or conservator:
- Hire an attorney – guardianship and conservatorship aren’t DIY legal proceedings. You’ll need an attorney to guide you through the process to ensure accurate, speedy results.
- File a petition with the county court – with the help of your attorney, you’ll file a petition for guardianship or conservatorship with the probate court in the county where the incapacitated adult lives.
- Schedule a hearing – when the court accepts your petition, the clerk will schedule an initial hearing to determine whether guardianship or conservatorship is necessary, and to evaluate your qualification to serve as the guardian or conservator.
- Serve notice to the interested parties – as the petitioner, it’s your responsibility to serve notice of the hearing to all interested parties, including the subject of the guardianship (known as the ward or protected person), the ward’s attorney, and the ward’s family members.
- File proof of notice – once you have served notice of the hearing to the interested parties, you’ll need to file proof of notice with the court. Failure to file proof of notice before the hearing will result in the hearing being cancelled and rescheduled.
- Ensure the ward has an attorney – if the prospective ward doesn’t already have an attorney, the court will appoint one for them. If the prospective ward is fully incapacitated, you’ll need to call and request a public attorney for them.
- Get professional certification of incapacitation – in order to prove that the prospective ward is in need of a guardian or conservator, you’ll need to have the ward examined by a physician or psychologist. The physician or psychologist will sign a certificate of incapacitation that you can submit to the court.
- Attend the hearing – at the hearing, all parties will have the opportunity to present their case for or against the proposed guardianship or conservatorship. The judge will assess the facts and either issue a ruling or schedule another hearing if additional due diligence is required.