How to Assume Power of Attorney/Guardianship

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If Your Elderly Loved One Cannot Grant It

It is an unfortunate reality for many elderly adults that cognitive decline worsens with age. In addition to natural cognitive decline, diseases such as Alzheimer’s and Parkinson’s can speed along this process; injuries resulting from accidents can accelerate the process. For the loved ones surrounding an elderly adult, there soon comes the question: Has my loved one ceased to be able to make decisions? When should I step up and take the lead? If so, how can I even begin to do that?

Power of attorney and guardianship are not interchangeable terms. If you do not have a legal document granting you power of attorney prior to your loved one becoming incapacitated, it may be difficult if not impossible to get this power. However, you can become a legal guardian of an incapacitated person, which grants many of the same powers, especially over healthcare decisions.

Here are four steps to assuming power of attorney/guardianship if your elderly loved one can no longer grant it.

Get a doctor’s blessing. 

  • A doctor (in some places and according to some legal documents, two doctors) must declare your loved one incapacitated. This could be for a variety of reasons—dementia that has progressed to the point that the person can no longer remember important health details, a brain injury which removed their ability to communicate, etc.—but it boils down to this: medically speaking, they are no longer fully capable of making informed decisions about their medical care, their financial arrangements, and other important areas of life.
  • You may be surprised to find out that this does not mean that your loved one’s input ceases here; that is a common misconception about declarations of mental incompetence. The patient should always be consulted on issues, and their feelings and desires should be taken into account whenever possible.
  • The doctor must also determine that you are competent and understand the needs of the patient. If you are, for example, also experiencing dementia, abuse drugs or alcohol, or suffer from untreated mental disorders like schizophrenia or severe manic depression, a doctor may not clear you to be a legal advocate for an incapacitated patient.

Consult with an attorney.

  • You need to consult with a trusted legal advisor as soon as possible once your loved one is declared legally incompetent to make decisions on their own. An attorney will tell you what your specific options are, and can interpret both the law (which is different in each state, so especially if you are not local to where you loved one lives, this is very important!) and any legal documents left by your loved one in case of just such a scenario.

See their Living Will. 

  • Many people, while they are still healthy, will create a “living will,” which is an advanced directive that gives instructions should they no longer be able to make decisions for themselves. Typically, a spouse, child, or close friend will be named in the living will as someone who will help them make decisions should something tragic happen. If you wish to be this person for your loved one, discuss it before they have become incapacitated. That is the only legally smooth way to assume power of attorney without risking a legal feud over the matter.
  • If you believe that your loved one is naming someone untrustworthy to have power of attorney over them, bring this up. You may also want to consult an attorney and voice your concerns. Although you cannot overrule your loved one’s decisions if they are made while legally capable, you can alert others to watch for financial abuse or apathy to important health care concerns.

Become a guardian/conservator or assume power of attorney.

  • If your loved one has left behind proper documentation, this process should be smooth and easy—it is a simple matter of checking the appropriate boxes and forms. Your attorney and doctor should be able to help you with these matters.
  • If your loved one has not left behind documentation granting you power of attorney, you may have to go to court and become legally declared a guardian. This is often a painless process, as this typically goes to a spouse or next-of-kin and is agreed upon by most family members. If there is a dispute, let it be settled legally and as quickly as possible so as not to delay healthcare to your loved one.
  • Courts can also grant conservatorship, which deals primarily with financial affairs for incapacitated people. Allowing everything you do to be worked out by an attorney will help you determine what you must do to specifically be named in each role.
  • Overall, it is best not to leave these decisions to chance or circumstance. Plan ahead with your loved one if possible, and plan ahead yourself.

 

Sources

Advocacy Centre for the Elderly (ACE). Powers of Attorney—Frequently Asked Questions. Available at http://www.advocacycentreelderly.org/powers_of_attorney_-_frequently_asked_questions.php. Retrieved February 23, 2016.

Alzheimer’s Association. Legal Documents. Available at https://www.alz.org/care/alzheimers-dementia-legal-documents.asp. Retrieved February 23, 2016.

Chappell, Vonda W. Private Client Services Update—Incapacitated Without a Power of Attorney… Where Do We Go from Here? Kaufman & Canoles. Available at http://www.kaufmanandcanoles.com/news/articles/private_client_services_update_-_incapacitated_without_a_power_of_attorney_._._._where_do_we_go_from_here%3F.htm. Retrieved February 23, 2016.

NextAvenue. A Guide to Power of Attorney for Your Parents. Available at http://www.nextavenue.org/guide-power-attorney-your-parents/. Retrieved February 23, 2016.

WVLegalServices.org. Powers of Attorney: What Do I Need to Know? Available at http://www.wvlegalservices.org/poa.pdf. Retrieved February 23, 2016.

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