How to Get Power of Attorney for Someone Who Is Incapacitated
Introduction
When a loved one becomes incapacitated due to illness, injury, or age, it can be a challenging time for both the individual and their family. In such situations, obtaining power of attorney is often necessary to make critical decisions on their behalf. This guide will walk you through the process of acquiring power of attorney for someone who is incapacitated, ensuring their well-being and the smooth management of their affairs.
Understanding Power of Attorney
- What Is Power of Attorney?
Power of attorney (POA) is a legal document that grants an individual (known as the "agent" or "attorney-in-fact") the authority to make decisions and act on behalf of another person (the "principal"). This authority can be broad or limited, depending on the specific circumstances outlined in the POA document.
- Types of Power of Attorney
There are different types of power of attorney, including:
- 1. General Power of Attorney
This type grants the agent broad authority to manage various aspects of the principal's life, such as financial and legal matters.
- 2. Limited (Special) Power of Attorney
Limited POA restricts the agent's authority to specific tasks or decisions, often for a defined period.
- 3. Durable Power of Attorney
A durable POA remains in effect even if the principal becomes incapacitated. It is a crucial document for long-term care planning.
- 4. Medical Power of Attorney
Also known as a healthcare proxy or advance directive, this POA focuses on medical decisions when the principal cannot communicate their wishes.
Steps to Obtain Power of Attorney for an Incapacitated Individual
Now that we have a foundational understanding of POA, let's delve into the essential steps to acquire power of attorney for someone who is incapacitated.
- Step 1: Consult with the Incapacitated Individual
Before proceeding, have an open and honest conversation with the incapacitated person (if possible) to ensure you understand their wishes and preferences regarding their affairs. This initial discussion is crucial for respecting their autonomy.
- Step 2: Identify the Right Type of POA
Determine the type of power of attorney that best suits the individual's needs. In most cases, a durable power of attorney is ideal for managing both financial and healthcare decisions. However, consult with legal experts for personalized advice.
- Step 3: Choose the Agent
Select a trustworthy and responsible agent who will act in the best interests of the incapacitated individual. This could be a family member, friend, or legal professional. The agent should have a clear understanding of their responsibilities and ethical obligations.
- Step 4: Draft the Power of Attorney Document
Seek legal assistance to draft a comprehensive power of attorney document that includes all necessary details and adheres to state-specific laws. Ensure that the document explicitly outlines the agent's powers and limitations.
- Step 5: Execute the Document
The principal must sign the POA document in the presence of witnesses and a notary public, following state regulations. Witnesses are typically required to attest that the principal signed the document willingly and was of sound mind at the time.
- Step 6: Inform Relevant Parties
Notify banks, medical professionals, and any other relevant institutions about the newly granted power of attorney. Provide them with copies of the document as needed. This step is essential to ensure that the agent can effectively carry out their duties.
- Step 7: Begin Exercising POA
Once the document is executed and all parties are informed, the agent can start making decisions and managing the principal's affairs according to the document's scope. This may include handling financial transactions, accessing medical records, and making healthcare decisions as required.
- Step 8: Periodic Review
It's advisable to periodically review and update the power of attorney document as circumstances change. This ensures that the agent's authority remains relevant and aligns with the principal's wishes.
Conclusion
Obtaining power of attorney for an incapacitated loved one is a crucial step in ensuring their well-being and managing their affairs responsibly. By following these steps and seeking legal guidance, you can navigate this process smoothly and provide the necessary care and support for your loved one.
FAQs
1. What is the difference between a general power of attorney and a durable power of attorney?
A general power of attorney grants broad authority but becomes invalid if the principal becomes incapacitated. In contrast, a durable power of attorney remains effective even in such situations, making it suitable for long-term care planning.
2. Can I obtain power of attorney without the individual's consent?
No, power of attorney requires the informed consent of the principal. If they are incapacitated and unable to provide consent, it may require legal action, such as guardianship proceedings.
3. How do I revoke a power of attorney?
To revoke a power of attorney, the principal must create a formal written document revoking the previous POA and distribute copies to relevant parties. It's essential to follow legal procedures to ensure the revocation is valid.
4. What responsibilities come with being an agent under a power of attorney?
An agent must act in the best interests of the principal, manage their affairs responsibly, keep accurate records, and avoid conflicts of interest. They are legally obligated to act in a fiduciary capacity.
5. Is it possible to have multiple agents under one power of attorney?
Yes, it is possible to appoint multiple agents, but it's essential to clarify their roles and responsibilities in the document to avoid confusion and disputes. Joint agents may act together or separately, depending on the stipulations in the POA document.