What I Become Incompetent or Incapacitated?

What If I Become Incompetent or Incapacitated?

It is common for a power of attorney to provide that the agent's authority springs into effect only if the principal (the person giving the power of attorney) becomes incompetent or incapacitated.

You are incompetent or incapacitated if you:

A.    Have an impairment in your ability to manage your property or business affairs;

B.  Have an impairment in your ability to make or communicate decisions even with the use of technological assistance;

C.     Are missing; or

D.    Are outside the United States and unable to return.

Your springing power of attorney should name one or more persons (other than your agent) who are authorized to determine in writing whether the specific event has occurred.  If the specific event is that you are incompetent or incapacitated, that person has the right to access your health and Social Security records and to communicate with your health care provider.  If you do not name anyone, then your power of attorney becomes effective when a physician says in writing that A or B above exists or an attorney or judge says in writing that C or D above exists.

You can name in your power of attorney who you want to be your guardian or conservator if you become incompetent or incapacitated.  That person can, but does not need to be, your agent.  The judge is required to appoint the person you name in your power of attorney unless there is good reason to the contrary or the person you name is not legally qualified to be a guardian or conservator.  Unless the judge limits, suspends or terminates your agent's authority, or your power of attorney provides otherwise, your power of attorney will remain in effect even after your guardian or conservator is appointed.  Your agent owes the same duties to your guardian or conservator as your agent owns to you.

If you become incompetent or incapacitated without having given a power of attorney, it may be necessary to have a court appoint a guardian or conservator for you.  A guardian takes care of your person.  A conservator takes care of your financial affairs. 

Having a court appoint a guardian or conservator is a lengthy and costly process that is usually paid for from your assets.  It requires filing a case with a court and one or more hearings before a judge.  The person who files the case, his or her attorney, your attorney and perhaps other witnesses are required to attend the hearing.  The judge will often appoint a person to meet with you and may require doctors to examine you and report to the judge.  The judge, rather than you, chooses the guardian or conservator and the scope of his or her authority.  The judge usually requires your guardian or conservator to inventory your assets and make periodic reports to the judge.  The hearings and reports are almost always open to the public and add to your loved ones' stress during an already difficult time. 

All this can be avoided by a properly prepared durable power of attorney that names who you want as your guardian or conservator, should that be necessary, and what authority you want your guardian or conservator to have.

Thomas T. Tornow has 33 years of experience with guardians, conservators and powers of attorney.  Contact his office at www.tornowlaw.com to schedule your free consultation.

Thomas T. Tornow, P.C.

By: Thomas T. Tornow

This post is exclusively for informational purposes. It is not legal advice. Viewing this post, using information from it, or communicating through this blog does not create an attorney-client relationship. Thomas T. Tornow, P.C. is not liable for the use or interpretation of information on this blog and expressly disclaims all liability for any actions you may or may not take based on the content of this blog.