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How To Get Power Of Attorney When Someone Is Incapacitated

How to Get Power of Attorney and Guardianship for Incapacitated Individuals

When a loved one becomes incapacitated, ensuring their well-being becomes a top priority. One of the ways to do this is by obtaining the legal authority to make decisions on their behalf. This article will guide you through the intricacies of obtaining a power of attorney and guardianship.

by | Sep 14, 2023 | Trusts

Power of Attorney for a Sick Parent

When a parent becomes seriously ill, it can be a challenging and emotional time. Having the legal authority to make decisions on their behalf can ease some of the burdens.

Types of Power of Attorney

  • General Power of Attorney: Grants broad authority over interests, useful in situations where the principal anticipates being unavailable or incapacitated for an extended period.
  • Special Power of Attorney: Tailored for specific situations, this type limits the agent’s authority to particular decisions, commonly used for one-time transactions or specific scenarios.
  • Health Care Power of Attorney: Focuses on medical decisions, becoming active when the principal is unable to make medical decisions due to unconsciousness or mental incompetence.

Obtaining Power of Attorney

  • State Requirements: Each state has its regulations and forms. It’s essential to consult local legal resources or an attorney familiar with your state’s laws.
  • Notarization and Witnesses: Ensure the document’s legality. Some states might require multiple witnesses, while others might need the document to be notarized.
  • Sound Mind: The principal must fully understand the document they’re signing, being aware of whom they’re appointing as their agent and the powers they’re granting.

Emergency Power of Attorney for Incapacitated Individuals

Emergencies can arise without warning. Being prepared can make navigating these situations slightly more manageable.

Attorney Recommendations

  • Consultation: An experienced guardianship attorney can provide guidance tailored to your situation.
  • Mental Incapacitation: One cannot obtain power of attorney after someone becomes mentally incapacitated.
  • Existing Documents: Always check for pre-existing legal documents. They can provide clarity on the incapacitated individual’s wishes.
  • Probate Court: If no power of attorney document exists, you’ll need to approach the probate court. This process can be lengthy and may require legal representation.

Guardianship for Elderly Parents

Guardianship is a more involved process than obtaining power of attorney and is typically considered when other options are unavailable.

Understanding Guardianship

If an elderly individual hasn’t set up a durable power of attorney and becomes incapacitated, guardianship might be the only option.

Legal Guardians and Their Roles

Becoming a legal guardian is a significant responsibility. The court plays a pivotal role in ensuring that the guardian appointed is best suited for the ward’s needs.

Court Hearing

The court’s primary role is to assess the potential guardian’s suitability. This assessment is crucial as the guardian will be responsible for making decisions on behalf of the ward. The hearing allows for a thorough evaluation of the potential guardian’s qualifications and intentions.

Factors Considered

The court doesn’t make its decision lightly. Several factors are taken into account to ensure the ward’s safety and well-being, including background checks, the relationship with the ward, and the ward’s preferences.

Responsibilities of a Guardian

  • Seeking Input: A guardian’s primary responsibility is to the ward. They should always prioritize the ward’s wishes, well-being, and best interests. Regular communication and understanding the ward’s desires are crucial.
  • Scope of Authority: The court will specify the areas in which the guardian has authority. This can range from making daily decisions to more significant ones like financial and medical choices. The guardian must always act within these boundaries.
  • Reporting: Guardians are accountable to the court. They must provide regular updates about the ward’s status, well-being, and any major decisions made. This ensures transparency and allows the court to intervene if necessary.

In conclusion, while the processes of obtaining power of attorney and guardianship can be complex, they are essential tools in ensuring the well-being of incapacitated individuals. Always seek legal advice and be informed about your state’s specific requirements.


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