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A Loved One's Incapacity - What Do You Need To Manage Their Affairs?

When someone you love has become too ill to make their own decisions, the natural impulse is to step in to help. However, the law requires that you obtain the authority to make legal, financial, or medical decisions for someone. There are essentially two different ways to obtain that authority, through a power of attorney document signed by the loved one while they were well, or through the courts.

A power of attorney document is signed by someone who has the mental competence to delegate authority to an "agent". A general power of attorney delegates authority to make legal and financial decisions for the signer, who is known as the principal. A medical power of attorney delegates authority to make decisions about the principal's care, including the principal's care providers and residence. Unless otherwise limited in the document, the authority of an agent to act is the same as the principal's authority. That is, the agent can do whatever the principal could have done. A power of attorney is "durable" when it specifically continues even if the principal is no longer mentally competent. Upon the principal's death, the agency automatically terminates.

If someone did not have a valid and effective power of attorney document in place before they became too ill to act, then a guardianship and/or conservatorship will become necessary. Where there is no general power of attorney in place, the court may need to appoint a conservator to manage the legal and financial affairs of an incapacitated person.

If there was no medical power of attorney in place, the court may need to appoint a guardian to make care decisions.

A guardianship or conservatorship may also be needed if more than one person is named as agent and the agents cannot reach the necessary consensus to make a decision. In some instances, a guardian or conservator or administrator may be appointed because a court believes that an agent may not be acting in the best interests of the principal.

A power of attorney that is signed by someone who lacks the capacity to understand what they are signing and the powers they are authorizing is not valid. That is why it is important to plan ahead while one is competent and work with an estate planning attorney to prepare the necessary documents to plan for incapacity and death, including powers of attorney, wills, and whatever else may be needed.

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