Filling out a general power of attorney form for your own needs is incredibly important. This form helps to ensure that your needs and wishes are carried out by a trusted agent in case you ever become incapacitated due to injury or illness. Having this form on hand will ensure that you, your loved ones, and your assets are protected – even if you’re unable to be the one doing the protecting.
One of the worst things you can do is to wait until you’re already incapacitated to think about completing these forms. It’s often too late to do anything at this point. But what if you’re not the one who needs the general power of attorney? What if it’s one of your loved ones and they’ve waited too long?
Is it possible to get power of attorney (POA) if they’re in some way incapacitated, or is it impossible to get power of attorney without their consent?
What Is General Power of Attorney and
Why Might You Need to Get It?
As the agent of a POA, what kinds of responsibilities do you have? Are there any limitations, or do you have unlimited control? To answer those questions, we need to look at what a power of attorney really is.
First of all, there are two types of POAs: general power of attorney and limited/special power of attorney. How do these differ?
- General POA: This form gives the agent broad power. A custom-drafted form explains what the agent can and cannot do in regards to legal, business, and healthcare decisions. But for the most part, the power they have covers a broad spectrum.
- Limited/Special POA: This form gives the agent less power than a general POA. Instead of having control over everything, the agent only has the power necessary to complete one or two tasks outlined in the POA, like selling one property instead of them all.
Second, there are two categories in which the agent of a POA has authority: healthcare and finances.
A healthcare power of attorney allows the agent to make healthcare decisions, including treatment options and end-of-life decisions. A financial POA agent takes care of bills, finding out about financial/healthcare benefits, and buying/selling assets and property. This is all within the boundaries of the custom-drafted POA form, of course.
You’ll want to make sure that the form you fill out is a durable power of attorney. The word “durable” ensures that the agent will still be able to exercise their power if you ever become incapacitated. Without the word “durable,” a general power of attorney form basically gives your agent the authority to make decisions in your behalf when necessary, but they lose that power if you’re incapacitated.
General, limited, health care, and financial POAs can all be made durable. In fact, it’s often best to do this from the outset with any POA form you complete. It’s important to note that the power of your agent is terminated upon your death. At that point, any decisions are made by the executor of your will.
Is It Possible to Obtain Power of Attorney Without Consent?
How to Do It
According to the law, a person must be of a “sound mind” in order to sign a power of attorney document. That means that anyone with dementia, Alzheimer’s disease, or any other condition that impairs judgment or their ability to make sound decisions can’t sign a POA.
If you have your parent sign a POA and they’re found by a court to be unfit to sign such a document, the POA will be invalidated and you won’t have any power as the POA agent. That’s why it’s so important to get these things taken care of early when a person is both mentally and physically healthy. Otherwise, only stress, chaos, and frustration will ensue.
Unfortunately, this is just an idea, and a lot of people don’t have ideal circumstances. So, then, what should you do if your parent is in some way mentally incapacitated? You’re likely the person that will take the best care of them, being sure to make decisions that are in their best interests.
But how can you make these decisions if you aren’t the legal agent? You can request the court for guardianship of your loved one. Guardianship, also known as conservatorship, gives you the ability to make decisions – both financial and medical – for another person.
Obtaining guardianship isn’t as easy as being named a POA agent. It can take quite a bit of time and, in many cases, it involves a court procedure. This procedure will not only take up your time, it will cost some money as well. But the result – being named the guardian of your loved one – will be worth it.
The best course of action would be to talk to a lawyer as soon as possible. An estate lawyer will be able to inform you of the local laws pertaining to conservatorship. They’ll also let you know if, in their professional opinion, whether you’re a candidate for guardianship or not.
It will take some money to get legal assistance in this process, but it’s the best thing you can do in this case. The laws around agency/guardianship are fairly strict – and for good reason. Power of attorney fraud and elder abuse are more prevalent than any of us want to believe. These laws are in place to protect seniors.
You don’t want to accidentally do something wrong and end up being accused of fraud or abuse. Talking to an attorney and asking them to take care of the conservatorship process for you will take a load off your mind.
What is involved in obtaining legal guardianship of another adult? Your attorney will prepare a petition for you, after which the court will hold a hearing. At this time, the judge will review the evidence to see if there’s really a need for guardianship and to see if you’re the best person to fill that role.
If you are granted this role, you will have the same duties as an agent would with a general power of attorney. Being a guardian differs from being an agent in two really important ways.
When you’re asked to be an agent, the principal (the person filling out the POA) will inform you of what duties you will have and exactly what their wishes are. They’ll put everything, or nearly everything, in writing so that you have clear direction and proof that you’re following their wishes.
When you’re a guardian, you don’t typically have this sort of information. You might have a vague idea of the person’s wishes but, for the most part, you’ll have to do your best to make financial and medical decisions in consonance with what you know of your loved one. This can relate to their values, as well as financial, business, and healthcare decisions they’ve made in the past.
The second way a guardianship differs from being an agent is that, as a guardian, you’ll have to report to the court regularly. This is required to prove that you are carefully taking care of your responsibilities and making decisions that are in the best interests of your loved one.
According to AARP, because this is a long, expensive process – and one that “removes important rights” – it is best to make sure this is really a road you need to go down. It’s recommended that you consult with a social worker, counselor, doctor, or geriatrician to see if guardianship is really necessary. With their knowledge and expertise, they can help you determine whether your loved one can assign you as their POA agent or not.
General Power of Attorney Is a Protection – Spread the Word
A general power of attorney form is an incredibly important one to fill out. In fact, it should be filled out sooner rather than later. When you fill it out now, you can ensure that your wishes will be fulfilled. If you wait, you have no idea what’s going to happen down the road.
It can be daunting to fill out legal documents, and no one likes thinking about the prospect of being incapacitated or about their own mortality. But the great thing about these forms is that if you just get it done and over with – you don’t have to worry about it. Granted, you’ll want to check it annually or every couple of years to make sure nothing needs to be updated. But the majority of the work will be behind you and that means you can rest easy.
What about your loved ones? Do they have a POA form filled out? Do they want you to care for their needs as they get older or if they become incapacitated? Spread the word! Let them know about the importance of filling out these forms, how it will help both them and you, or whoever they choose to be their agent.
You can even go a step further and tell them you’ll help them fill out the forms to make the process even easier. Then, you can both experience peace of mind. Don’t wait a moment longer – set aside some time to get this important legal form completed as soon as possible.