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The answer to this question depends on mental competency. A person is required to be mentally competent to execute a Power of Attorney, which means they have to be able to understand what they are signing and the effects of doing so in order to legally enter into such an arrangement. In some cases, a physician may be able to sign off on declaring a person mentally competent to sign. Alternatively, a person may execute a combined Mental Health Declaration and Power of Attorney in order to decide beforehand that a Power of Attorney would go into effect when certain conditions are met. 

Another option is a Durable Power of Attorney. A Durable Power of Attorney goes into effect immediately upon signing it and terminates only upon death. Your loved one may decide instead to create a Springing Power of Attorney, a variation of the Durable Power of Attorney, which goes into effect only when they can no longer demonstrate the ability to make important decisions on their own behalf. The person to whom they grant authority to make these decisions can do so only when the grantor's own abilities come into question.

What happens if a Power of Attorney is not made?

If you do not have a Medical Power of Attorney, hospitals or physicians may have to make medical decisions on your behalf in an emergency. When it comes to finances, issues may arise if no one is authorized to make key decisions, such as those surrounding modifying a loan or accessing funds in a bank account to pay bills. Without a Power of Attorney, no one other than a court can decide to appoint someone to manage your loved one’s affairs. You would not be able to step in to help your loved one without a court interfering, and the court could appoint someone your loved one would never have personally chosen. This would mean that a hospital or physician may have to make medical decisions on their behalf in an emergency without any input from a trusted party. Similarly, when it comes to finances, issues may arise if no one is authorized to make key decisions, such as those surrounding modifying a loan or accessing funds in a bank account to pay bills.

What happens if my loved one cannot sign the Power of Attorney?

If your loved one is not deemed mentally competent to sign a Power of Attorney, you may have to seek conservatorship through a court to obtain the same type of authority to make decisions on their behalf. A conservatorship usually entails a costly and time-consuming judicial process. Typically, the court appoints your loved one’s next of kin to oversee medical and financial decisions. Keep in mind that although the court is likely to appoint a close family member, it may not be the person most up to the task, which could create friction among adult siblings.

How can I discuss making a Power of Attorney with a parent or loved one?

If your parent or other loved one discloses a diagnosis that may impact their decision-making ability, it may be best to initiate a conversation regarding a Power of Attorney as soon as possible. A Durable Power of Attorney for medical and financial issues can provide peace of mind in case their condition progresses quickly. Alternatively, you can set up a Springing Power of Attorney to take effect only when they can no longer make decisions on their own behalf. This decision can be part of a larger estate planning conversation, where an Advance Directive or Living Will may also be considered to ensure you understand their wishes for medical care.

Overall, it’s important to emphasize to your loved one that Powers of Attorney are the best way for them to ensure their wishes are carried out if they become incapacitated. Many people find comfort or security knowing that these decisions are in good hands. 

Most states require that a Power of Attorney be written, witnessed, and notarized. For this reason, it is often convenient to grant a Power of Attorney while finalizing a comprehensive estate plan. You can also reassure them that they can change the person named in the Power of Attorney (the “agent”) at any time as long as they are mentally competent when they do so. 

If you have any questions regarding how to get started creating a Power of Attorney or which type might be best for your loved one, contact a Rocket Lawyer network attorney today for affordable legal advice. 

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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