How to Get Power of Attorney for Someone Who Is Incapacitated?

If someone is already incapacitated, you can’t obtain a standard power of attorney because it requires the principal to be mentally competent at the time of signing. Instead, you’ll need to petition a court for guardianship or conservatorship to gain legal authority over their affairs. However, if a durable power of attorney was set up before their incapacity, the designated agent can step in without court intervention.

Picture this: Your aging parent slips into a coma after a sudden stroke, or your spouse develops advanced dementia overnight. Bills are piling up, medical decisions loom, and you’re left wondering, “Who’s going to handle this?” If they didn’t grant someone legal authority beforehand, you’re not just facing a personal crisis—you’re stepping into a legal puzzle that could take weeks or months to solve.

This is where power of attorney (POA) comes in—or, more precisely, where its absence creates a challenge. If someone is already incapacitated, getting POA isn’t as simple as signing a form. But don’t panic—there are clear steps and alternatives to help you take control and protect your loved one. In this guide, we’ll break down how to get power of attorney for an incapacitated person, explore your options, and arm you with the knowledge to act decisively.

What Is Power of Attorney? A Quick Rundown

A power of attorney is a legal document that authorizes someone (the agent or attorney-in-fact) to make decisions for another person (the principal). These decisions might cover finances—like paying bills or managing investments—or healthcare, such as approving treatments. The catch? It’s all about decision-making capacity.

Types of Power of Attorney:

• General Power of Attorney: Broad authority, but it expires if the principal becomes incapacitated.
• Durable Power of Attorney: Stays valid even after incapacity—crucial for long-term planning.
• Medical Power of Attorney: Focuses solely on healthcare choices.

Why does this matter? Because incapacity—whether from Alzheimer’s, a coma, or a traumatic injury—strikes more often than you’d think. The National Institute on Aging reports that 1 in 10 adults over 65 faces cognitive impairment, underscoring the need for proactive estate planning.

Related article for you:
How to Get Power of Attorney for Someone Who Is Incapacitated in California?

Common Misconceptions About Power of Attorney and Incapacity

There are several myths surrounding POA and guardianship. Let’s clear up some of the biggest misconceptions:

• “I can get POA after someone is incapacitated.” False—POA must be set up while the person is still mentally competent.
• “A spouse automatically gets POA.” False—Marriage does not grant automatic legal authority over financial or medical decisions.
• “Verbal consent is enough to create a POA.” False—POAs must be legally documented and notarized in most states.

Understanding these myths can save you from unnecessary delays and legal obstacles.

Related article for you:
How to Get Power of Attorney for an Elderly Parent with Dementia?

The Stakes: Why You Can’t Afford to Wait

Imagine your loved one’s bank account is frozen, their mortgage is overdue, and doctors need consent for surgery—but no one has legal authority to act. Without a durable POA in place before incapacity, you’re stuck. Here’s what could happen:

• Court Delays: Gaining authority through the courts can take months, stalling urgent decisions.
• Unexpected Guardians: A judge might appoint a stranger if family can’t agree on who should step up.
• Financial Strain: Legal fees for guardianship can climb into the thousands.

Planning ahead with a durable POA avoids this chaos. But if that ship has sailed, let’s explore your next moves.

How to Get Power of Attorney for an Incapacitated Person: Your Roadmap

Step 1: Search for an Existing Durable POA

First, check if your loved one already has a durable POA. Dig through their files, safe, or ask their attorney. If one exists and names you (or someone else) as the agent, you’re in luck—it’s still valid post-incapacity.

Pro Tip: In states like Florida, POAs can be registered with the county clerk. Start there if you’re empty-handed.

Step 2: No POA? Explore Guardianship or Conservatorship

If no durable POA exists, you’ll need court approval to manage their affairs. Enter guardianship (personal/medical decisions) and conservatorship (financial oversight). These terms differ by state:

• Texas: The Texas Estates Code Section 752.051 provides a statutory durable POA form, but guardianship kicks in when no POA exists.
• California: The California Probate Code separates guardianship (for people) from conservatorship (for assets).

Step 3: File a Petition with the Court

You’ll need to submit:

• Proof of Incapacity (medical records or a doctor’s affidavit).
• Your Case explaining why you’re the right person for this role.
• Filing Fees, which range from $100 to $500.

Step 4: Navigate the Hearing

Be prepared to answer questions about your qualifications and intentions. The court may appoint a guardian ad litem to protect the incapacitated person’s rights.

Step 5: Follow Through on Court Orders

If approved, you might need to:

• Post a bond (insurance against mismanagement).
• Submit periodic reports on their finances or care.

Guardianship vs. POA: What’s the Difference?

Feature	Power of Attorney	Guardianship/Conservatorship
Requires Court Approval	No	Yes
Costs	$100-$300	$3,000-$7,000+
Flexibility	Private & Flexible	Court-Supervised

Legal Challenges, What If Someone Contests Guardianship?

Family disputes often arise over guardianship. If multiple family members apply or someone believes you’re unfit, the court may:

• Require mediation.
• Appoint a neutral third party.
• Delay the decision, leading to further financial or medical complications.

FAQs

Can I get POA if my parent has mild dementia? 

Yes, but only if they are still mentally competent to sign legal documents.

What happens if multiple siblings apply for guardianship? 

The court decides based on evidence of who is best suited.

Can power of attorney be revoked after incapacity? 

No, but a court can override it if abuse is suspected.

Wrapping Up: Act Before It’s Too Late

Getting power of attorney for someone who’s incapacitated isn’t a quick fix—it’s a legal journey requiring patience and precision. Whether you’re activating an existing durable POA or petitioning for guardianship, the goal is the same: safeguarding your loved one’s well-being.

The real takeaway? Don’t wait. A durable POA is your best defense against future uncertainty.

Resources to Get You Started

• State Forms: Download POA templates from official state websites.
• Legal Aid: Contact Legal Services Corporation or local groups for free assistance.
• Attorneys: Find an elder law expert via the National Academy of Elder Law Attorneys (NAELA).