How to Get Power of Attorney for Someone Who is Incapacitated

At Vistas Law Group, we understand that life can take unexpected turns. When a loved one becomes incapacitated, it’s not just emotionally overwhelming but also legally challenging to manage their affairs. In these moments, securing power of attorney can make a world of difference. It’s a vital step to ensure the proper management of their financial and healthcare needs. Let’s walk through what you need to know and how to get started.

What is Power of Attorney?

A power of attorney (POA) is a legal document that allows someone (known as the agent) to make decisions on behalf of another person (the principal). These decisions include managing finances, handling legal matters, or making healthcare decisions. In California, there are two primary types of POA to consider:

  • General Power of Attorney: Grants broad authority but ends if the principal becomes incapacitated.
  • Durable Power of Attorney: Remains effective even after the principal is incapacitated, making it a crucial option for long-term planning.

The scope of authority can vary. Some POAs cover financial matters, while others focus on healthcare decisions. Creating a document that matches your loved one’s specific needs is essential. In California, POA documents require proper witnessing or notarization to be valid.

Determining Incapacity

Before you can act on behalf of a loved one, their incapacity must be legally established. In California, this typically involves a medical evaluation. A licensed doctor or psychologist evaluates the individual’s ability to make informed decisions.

Under California law, incapacity generally means the person cannot understand or communicate decisions about their personal, medical, or financial matters. Once incapacity is confirmed, it triggers the provisions of an existing durable power of attorney, or it might require further legal action if no POA exists.


Steps to Obtain Power of Attorney for an Incapacitated Person

When your loved one becomes incapacitated, the steps you take will depend on whether they have already prepared a durable power of attorney. Let’s first address what happens if this essential document is already in place.

If a Durable Power of Attorney Already Exists

If your loved one previously created a durable power of attorney, this document becomes active upon their incapacity. Here’s what to do:

  1. Locate the Document: Ensure you have the original copy.
  2. Notify Relevant Parties: Inform banks, healthcare providers, and others about the POA.
  3. Understand the Scope: Review the document carefully to know what authority has been granted.
  4. Resolve Disputes: Legal intervention may be necessary if family members disagree with the POA.

If No Power of Attorney Exists

If your loved one did not create a POA before becoming incapacitated, you’ll need to petition the court for conservatorship. Here’s how this process works in California:

  1. File a Petition: Submit a petition to the probate court in the county where your loved one resides.
  2. Medical Evaluation: A court-appointed medical professional evaluates your loved one’s capacity.
  3. Court Hearing: Attend the hearing where the judge reviews the evidence and decides whether to appoint you as the conservator.
  4. Appointed Authority: Once approved, you’ll be responsible for managing your loved one’s affairs. This might include financial management, healthcare decisions, or both, depending on the type of conservatorship granted.

Types of Conservatorship in California

In California, there are several types of conservatorships:

  • General Conservatorship: For fully incapacitated adults.
  • Limited Conservatorship: Often used for adults with developmental disabilities who need assistance.
  • Conservatorship of the Person: Covers decisions about personal care, including medical treatments and living arrangements.
  • Conservatorship of the Estate: Focuses on managing financial matters.
  • Temporary Conservatorship: Provides immediate authority for urgent situations, typically lasting until the establishment of a permanent conservatorship.

Challenges, Considerations, and Preventive Measures

Obtaining power of attorney or conservatorship can present hurdles, but planning ahead can ease the process.

Common Challenges:

  • Family Disputes: Conflicts over who should act as agent or conservator can cause delays.
  • Time and Costs: Conservatorship proceedings can be lengthy and expensive.
  • Bonding Requirements: Conservators may need to post a bond to safeguard assets.
  • Emotional Strain: Managing someone’s affairs can be overwhelming for family members.

Alternatives like supported decision-making or an advance healthcare directive may offer more straightforward, less formal solutions.

Preventive Steps

To avoid these issues, encourage loved ones to create a durable power of attorney and an advance healthcare directive while capable. These tools protect their wishes and lighten the burden on family members.

Protect Your Loved Ones Today

Facing the incapacitation of a loved one is never easy. Let Vistas Law Group help you take the right steps with confidence and care.

Contact us today at (213) 745-8747 (Los Angeles) or (951) 307-9154 (Inland Empire), or visit our website to schedule a consultation. Together, we can ensure your loved one’s needs are met and their future is secure.

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