When It’s Too Late: How to Get Power of Attorney for Someone Who is Incapacitated
Legacy planning becomes particularly crucial when dealing with the unexpected. One significant aspect to consider is acquiring Power of Attorney (POA) for someone who is incapacitated.
If you are familiar with the Trusted Covenant story, you know just how important this was to me and my family. When my 25-year-old daughter, Kayla, fell into a coma and could no longer communicate her wishes with her mother and me, we were desperate to make sure her intentions were honored.
Normally, we would have been helpless. Our “child” was no longer a child, but a legal adult.
But thanks to foresight given to us by the Holy Spirit, we prepared a Power of Attorney and Advanced Medical Directive, allowing us to make healthcare decisions on behalf of our daughter.
In this guide, we'll address common questions and provide actionable steps to navigate this important legal process.
Understanding the Basics: What is Power of Attorney?
Before delving into the process, let's briefly revisit what Power of Attorney entails.
Essentially, it is a legal document that grants authority to an appointed individual (known as the "agent" or "attorney-in-fact") to make decisions on behalf of another person (the "principal"). This authority can cover various areas, such as financial, healthcare, or both.
1. Why is Power of Attorney Crucial for the Incapacitated?
When someone becomes incapacitated due to illness or injury, important decisions still need to be made. Without a designated agent holding Power of Attorney, these decisions may fall into legal limbo.
This is exactly what helped us navigate Kayla’s tragedy with peace of mind. Since she had designated her mother and me as agents, legally empowered to make medical decisions on her behalf, we knew we could honor her intentions.
We can never know when someone we love, even an adult child, might need us to speak for them.
I’m so grateful Kayla’s mother and I didn’t wait until it was too late to act. I hope you it won’t be too late for you, either.
Here's why obtaining Power of Attorney is crucial for you:
Timely Decision-Making: POA enables prompt decision-making on financial matters, medical treatments, and other critical aspects.
Avoiding Legal Complications: Without a POA, family members might face legal hurdles in managing the incapacitated person's affairs.
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2. Identifying the Right Type of Power of Attorney
Power of Attorney comes in different forms, each serving specific purposes. For an incapacitated individual, the following types are most relevant:
Durable Power of Attorney: This remains effective even if the principal becomes mentally incompetent. This pertains mostly to matters of property and finances.
Healthcare Power of Attorney: Also known as a medical or healthcare proxy, it specifically addresses decisions related to health and medical treatments. This is what allowed us to act on our adult daughter’s behalf.
3. Steps to Obtain Power of Attorney for the Incapacitated
Ideally, you never reach this step. By obtaining a Power of Attorney and Advance Healthcare Directive before the fact, you can prevent this messy, contentious situation.
However, if a loved one becomes incapacitated before you acquire the necessary legal documents, here’s what to do:
Assess the Situation
Before proceeding, assess the individual's mental capacity. If they are already incapacitated, you may need to consult with legal professionals about the appropriate steps.
2. Gather Necessary Information
Collect essential details, such as the incapacitated person's personal information, any existing legal documents, and information about potential agents.
3. Consult with an Attorney
Seek legal advice to ensure compliance with local laws and regulations. A lawyer can guide you through the process, helping you choose the right type of POA and preparing the necessary documentation.
4. Selecting the Agent
Choose a trusted and reliable individual to act as the attorney-in-fact. Discuss the responsibilities and ensure they are willing to take on this crucial role.
5. Draft and Execute the Document
With legal guidance, draft the Power of Attorney document. Ensure that it complies with state laws and includes specific powers and limitations. Execute the document with the necessary signatures and witnesses.
4. Overcoming Potential Challenges
Resistance from Family Members
In some cases, family members may dispute the choice of the attorney-in-fact. Open communication and clear explanations can help address concerns and minimize conflicts.
Thankfully this wasn’t the case in our situation. Because we were Kayla’s parents and we wanted the very best care for our child, we were able to take on this important responsibility without any resistance from other family members.
Again, this is always best BEFORE the crisis occurs.
It’s much easier to have a family meeting when everyone is alert and able to speak their mind. It’s much harder to have a family meeting when one or more loved ones are unconscious or no longer alive to share their intentions.
Ensuring Legitimacy
To avoid challenges to the POA's legitimacy later on, make sure the document adheres to legal requirements and is properly executed with the necessary signatures and witnesses.
That means getting your POA and Healthcare Directive notarized. If you complete your documents with Trusted Covenant, we can connect you with a notary who can witness and sign your documents with ease.
5. Ensuring Ongoing Communication
Once Power of Attorney is established, maintaining open communication is crucial. Regularly update the attorney-in-fact about the incapacitated person's condition and any changes in their wishes or circumstances.
You can do this even if you’ve completed your POA and Advance Healthcare Directive when everyone is awake and alert. Staying up-to-date is crucial so that when the moment happens, all of your wishes are properly and fully honored.
Empowering Decision-Making in Difficult Times
Navigating the process of obtaining Power of Attorney for someone incapacitated may seem daunting, but with careful planning and legal guidance, you can ensure that the right decisions are made on behalf of your loved one.
In reality, the best plan is to complete these documents BEFORE your loved ones become incapacitated.
If we had waited to secure these documents until after Kayla was in her coma, we might never have been able to honor her wishes and provide her with the care she needed.
Don’t wait until it’s too late.
Don’t wait until your loved one — your spouse, child, parent, sibling — can no longer speak and let their intentions be known.
Book a 15-minute call with Mynor today to take care of your Power of Attorney and Advance Directive for Healthcare for FREE.
