How To Get a Power of Attorney for Someone Who Is Incapacitated?

Updated September 20, 2023
11 min read
How To Get a Power of Attorney for Someone Who Is Incapacitated?


In life’s unexpected twists and turns, you may find yourself in a situation where you need to step up for a loved one who is incapacitated. This post unfolds practical steps on how to get power of attorney for someone who is incapacitated, allowing you to make significant decisions on their behalf. This thorough guide goes beyond helping you comprehend the meaning of the power of attorney, its different types, and when it should be used for someone incapacitated.

Understanding Capacity and Incapacity

An important point when considering how to get power of attorney for someone is an understanding of "capacity" and its opposite, "incapacity." In U.S. law, capacity refers to an individual's cognitive ability to comprehend the nature and implications of their decisions or actions. This could apply to anything from signing a contract to getting married or even making a will. In essence, capacity is about being mentally capable of making informed and rational decisions.

An example of capacity would be an elder who, while managing some age-related issues, is still lucid and aware of their decisions — including granting power of attorney to someone. This might be done as a precautionary measure, for instance, in case of future incapacity.

On the flip side, "incapacity" refers to the inability of an individual to manage their own affairs or make essential decisions. They may be incapacitated due to old age, severe illness, or a serious accident. As such, they are legally unable to grant power of attorney to someone else. For instance, a person diagnosed with advanced Alzheimer's may struggle with understanding or making significant decisions. In this case, a legal process would need to be pursued to obtain power of attorney for someone who is incapacitated.

What Type of Power of Attorney Can Help Someone Who Is Incapacitated?

When considering the type of power of attorney for someone who is incapacitated, you'll need to understand the different types available. The best fit is often a 'durable power of attorney.' This type of arrangement takes into account the likelihood of future incapacity and, particularly, continues to be effective when the person becomes incapacitated. This makes it substantially beneficial for individuals who are either already incapacitated or have a high risk of becoming incapacitated due to specific medical conditions.

There are two key types of durable power of attorney that you can consider for someone who is incapacitated:

  1. Durable financial power of attorney: This gives the designated person the authority to manage the financial affairs of the incapacitated individual. Duties might include managing bank accounts, paying bills, or handling investments. This type of power of attorney for someone ensures that even if they're incapacitated, their financial matters will continue to be properly handled.

  2. A durable medical power of attorney: Unlike the financial version, this type of power of attorney grants the selected individual the authority to make healthcare decisions for the incapacitated person. This can range from agreeing to certain types of treatment to deciding on long-term care options. If the individual becomes incapacitated, having this type of power of attorney for someone in place provides a robust healthcare decision-making structure.

It's also important to underline that you should always seek professional legal advice when contemplating which type of power of attorney for someone incapacitated is the best match for your situation. For a quick resource to start your research and understanding, you can check Lawrina. It also provides a variety of templates, such as those for different types of power of attorney.

What To Do if Someone Cannot Legally Sign a Power of Attorney Document?

In certain scenarios, an individual may be so severely incapacitated that they are unable to provide the necessary consent or legally sign a power of attorney document. In these situations, obtaining power of attorney for someone can become a bit more complex. However, don't let worry cloud your judgment, as there are legal procedures in place to handle such situations.

The legal process in these situations is considerably extensive. The court must verify that the individual in question is indeed unable to grasp the nature and consequences of their own actions, to the extent that a power of attorney for someone may not be legally valid. If the court agrees, it can grant either conservatorship or guardianship, depending on the circumstances. In these cases, the appointed conservator or guardian wields authority akin to someone with a power of attorney.

Securing power of attorney for someone incapacitated to the point of being unable to sign legal documents is arduous but critical. Accomplishing this demands a great deal of patience and the expertise of seasoned legal professionals. It's advised to seek the assistance of a skilled attorney specializing in family law.

When To Use Power of Attorney?

Power of attorney for someone who is incapacitated is often put into effect when the individual cannot manage their affairs due to mental or physical disability. Here are instances where this might be necessary:

  • Progressive diseases: If someone is diagnosed with a progressive disease such as Alzheimer's, Parkinson's, or Multiple Sclerosis, they might lose their cognitive functions over time. Setting up power of attorney for someone early in the course of their disease helps ensure their affairs will be properly handled even after they become incapacitated.

  • Sudden incapacitating events: Accidents, strokes, or sudden severe illness can lead to immediate incapacity. If the individual had previously set up a durable power of attorney, it could come into effect immediately, allowing for seamless management of their affairs.

  • Long-term incapacity: In cases like vegetative states or profound mental health issues where individuals cannot make decisions for themselves, having a durable power of attorney for someone can help ensure their healthcare and financial matters are attended to appropriately.

  • Terminal illness: In situations where an individual is terminally ill and may lose their ability to communicate or make conscious decisions, setting up power of attorney for someone trusted can relieve the ill person of the burden of decision-making and allow them to focus on their well-being.

In conclusion, using a power of attorney for someone incapacitated is a vital legal tool that enables an appointed person to manage the incapacitated individual's affairs effectively. As such, it's considered a compassionate and proactive action to protect the well-being and interests of your loved one. 

Getting a Power of Attorney for Someone Who Is Incapacitated

If you're still grappling with the question, 'How do you become power of attorney for someone who is incapacitated?' Let's delve into the steps:

  • Evaluate whether they can still give their consent.

  • Obtain their consent if possible.

  • Hire a reliable attorney specializing in family law who can guide you through the process.

  • Gather necessary information such as identification and financial details.

  • Draft a power of attorney document and have them sign it in the presence of a witness or notary.

The process of acquiring power of attorney for someone who is incapacitated can be complex. Make sure you seek the assistance of professionals and protect the interests of your loved one. Remember, having this legal authority means making decisions in the best interest of the individual. It's vital to consider their desires and values and always prioritize their welfare in all your decisions.

Benefits of power of attorney

Obtaining power of attorney for someone who is incapacitated comes with several benefits, chiefly ensuring the person’s affairs are efficiently managed when they are unable to do so themselves. It offers reassurance that crucial decisions — whether they concern healthcare or finance — are being managed by someone they trust. This is particularly comforting in situations where the person may eventually lose their ability to decide on critical matters because of their incapacitation.

Alongside this, a power of attorney for someone incapacitated helps avoid potential disagreements or conflicts within the family that can arise due to differing views on how affairs should be managed. It provides a legal framework that directs actions and leaves little room for confusion. Moreover, it can potentially bypass the need for complex court procedures that might otherwise be needed to manage the individual's affairs, thereby reducing stress and strain during an already challenging period.

However, these benefits can only be achieved with a well-drafted power of attorney that addresses the person's specific situation — nothing less will suffice. For this purpose, you can utilize a professionally designed power of attorney template, which provides a solid starting point and can be modified to suit individual needs. Considering the importance of this legal document, ensure it is accurately filled out and covers all aspects relevant to the circumstance.

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When you embark on the process of obtaining a power of attorney for someone incapacitated, you essentially commit to prioritizing their welfare and well-being. While the legal intricacies of this process might seem convoluted and time-consuming, it is a critical step towards ensuring their interests are safeguarded when they can no longer confidently make decisions for themselves. The power of attorney serves as a legal safety net, providing a degree of control and predictability in an otherwise tumultuous time.

It's important to remember setting up a power of attorney for someone isn't just about safeguarding their financial and physical welfare but also protecting their personal choices and dignity. Walking through this journey may initially seem overwhelming, but remember it demonstrates care and concern for a loved one who needs it. Rest assured, with patience, assistance from good legal counsel, and a commitment to their wellbeing, you will find yourself equipped to take on this responsibility with conviction and confidence.

Frequently Asked Questions

What is a power of attorney for someone who is incapacitated, and when should it be considered?

A power of attorney for someone who is incapacitated is a legal document that grants a designated person (usually referred to as the agent or attorney-in-fact) permission to make important decisions on their behalf. This includes healthcare decisions, financial matters, and personal affairs. 


Typically, a power of attorney for someone who is incapacitated should be considered when an individual has been diagnosed with progressive diseases, such as Alzheimer’s or Parkinson's, or when they have suffered sudden incapacitating events like a stroke. It is also useful in long-term incapacity situations or if someone is facing a terminal illness. 


How can one obtain a power of attorney for someone who is incapacitated?

Acquiring a power of attorney for someone who is incapacitated requires certain steps. First, the principal’s capacity must be assessed. In instances where they can manifest their consent and understand the implications of a power of attorney, obtaining their agreement can make the process more straightforward.


However, in situations where the individual is unable to provide consent, recourse to the court may be needed, in which case you may need to apply for guardianship or conservatorship. Throughout this process, it is beneficial to get expert advice from a professional attorney experienced in family law and power of attorney matters. 


Once the documents are prepared, these need to be signed in the presence of a notary and then filed with the appropriate institutions. 


What responsibilities come with having a power of attorney for someone who is incapacitated?

Holding a power of attorney for someone who is incapacitated comes with considerable responsibilities, as you're entrusted with making decisions on behalf of the person in their best interest.


Duties vary depending on the specifics laid out in the power of attorney document but normally encompass making financial and healthcare decisions.