A general power of attorney does not remain in effect after someone is unable to make decisions for themselves. If the word durable is not specified, the power of attorney is voided when the person who granted it becomes incapacitated. You can also get a springing durable power of attorney. This will not go into effect until the principal can no longer make his own decisions. With this process, the person must be proven to be unable to make his own decisions before the power of attorney will go into effect. [2] X Research source You can create a durable power of attorney for health care, which grants the agent the full rights to take care of all the principal’s medical decisions when he can no longer do it himself. This includes all medical decisions from going for a check up to surgery decisions. These are often accompanied by a Living Will. You can also create a durable power of attorney for finances, which gives the agent full control over the principal’s finances. This includes everything from opening the mail and depositing checks to filing taxes. [3] X Research source You can also write a full durable power of attorney that gives all of the principle’s rights away, both financial and health related, to one agent. [4] X Research source
Make sure he understands what it means to sign over power of attorney. This includes what types of decisions will be made for him. [5] X Research source For example, a principle may want to draw up a durable power of attorney if he is diagnosed with dementia. In this case, the principal may want to set up a contract while he is still in a level state of mind and appoint his daughter as agent in order to protect himself in the future when he can no longer remember everything.
You must go to court to ask to be appointed as a conservator or guardian. To become a guardian of someone, the principle much first be labeled legally incompetent by the court. That is, he must not be able to meet his own basic needs. [7] X Research source Elder Law: Cases and Materials, LexisNexis, Fifth Edition (See chapter 9, “Guardianship”) You need to go to the state circuit or district court of the county where he lives. These courts make the decisions for the guardianship of those that live in the area. Your situation will be assessed based on your eligibility to serve as guardian, his inability to take care of himself, and the lack of other possible fitting options to guardianship. [8] X Research source
For example, Bob may grant a durable power of attorney for finances to his son, Jim, for the tenure of one real estate deal. Once the deal is closed, Bob’s financial decisions belong to Bob again. However, Bob can also write a durable power of attorney for finances that will give Jim all the control over his finances if he happens to become incapacitated in an accident or because of a health issue. [9] X Research source Some people also choose a power of attorney to have control over finances if they themselves have a spending problem. This gives the main control over certain aspects of his finances, such as a savings account or investments, to the agent.
Keep in mind that the person appointed as the agent will be making extremely important decisions. For example, if the agent does not live near your loved one, it may be difficult for that person to have the required relationship with his banks or his doctors.
For example, some people are against using machines in hospitals to help keep someone alive. Some may also not believe in any resuscitation efforts, but others strongly believe in these things. You need to make sure the agent of the power of attorney is on the same page as your loved one and will make decisions according to his specifications. Generally, you should help your loved one choose an agent that he can talk to about what he wants and who he thinks will follow his wishes completely.
You should research the requirements in your state. [10] X Research source If your situation is complicated and you’re unsure how to proceed, hire an attorney to help you and your loved one carry out the proper requirements for granting power of attorney.
You may be able to download a power of attorney form from various state websites, including departments of health, state bar associations, county bar associations or other agencies. [11] X Research source
Make sure the form says whether the rights are springing durable or durable. You should also know which powers can’t be given under your state’s law. For example, an agent cannot draft a will for the principal under state law even if the power of attorney document grants that power. For example, the person giving away his rights can specify in the power of attorney form that the decision maker will not have power over him until the principal is 75 years old, but once he reaches that age, the decision maker will have the specified powers, regardless of the principal’s capacity. Alternate decision makers can also be named. This is in case the first decision maker is unable or unwilling to act on his authority.
For example, in Florida, a power of attorney document must be signed by two witnesses. In Utah, no witnesses are required. You should find out if your state requires witnesses. [12] X Research source [13] X Research source [14] X Research source
For example, instead of saying that the agent “has the rights to the principal’s finances,” say that the agent “has the rights to withdraw money and make payments from the principal’s three bank accounts: bank account X, bank account Y, and bank account Z. ”
