QUESTION
How can I obtain a power of attorney from my father who has dementia?
Asked on Nov 19th, 2011 on Estate Planning - Georgia
More details to this question:
My father has dementia. He is 90% of the time incoherent. I need a POA to be able to sell property and pay his bills.
11 ANSWERS
General Practice Attorney serving Indianapolis, IN
at
Broad Law Firm, LLC
Update Your Profile
If he is not mentally competent to sign a Power of Attorney, then your only option will likely be to seek a Court appointed guardian. In Indiana, the process for this task is to file a Petition to Appoint a Guardian, notifying all relatives of the proceeding. The Court then appoints a temporary guardian to determine for the Court if the person truly needs a permanent guardian. Then a hearing is held and a guardian is appointed. You can request that the Court appoint you as the Guardian. In Indiana, the process generally takes a month or two to complete. You should seek the advice of an estate planning or elder law attorney in your area.
Answered on Feb 17th, 2012 at 12:14 PM
At this point, it appears you may need to seek a conservatorship. You can petition the Court to be appointed his conservator. If your father lacks capacity (due to dementia) he would lack capacity to execute a POA. You should consult an attorney who practices in Conservatorships.
Answered on Nov 29th, 2011 at 12:38 PM
3 Awards
It is probably too late for your father to execute a power of attorney. He needs to possess a minimum of testamentary capacity to execute a power of attorney. It sounds like you will need to obtain legal guardianship through the courts to be appointed his guardian and be authorized to make both health care and financial decisions for him. The Clark County Family Courthouse has a self-help center where you can purchase forms or view them online if you want to try to prepare the paperwork on your own. It is not a seamless process so it is usually preferable to hire an attorney with significant guardianship experience to assist you.
Answered on Nov 28th, 2011 at 1:01 PM
Bankruptcy Attorney serving Lenexa, KS
at
Walden Legal Solutions, LLC
Update Your Profile
Powers of Attorney are given by a person to their agent. If one is incapacitated, he is no longer able to give up those powers. That means that your father would not be able to assign you as his agent under a Powers of Attorney. The only way you would be able to take care of his medical and financial decisions on his behalf would be through a Guardianship / Conservatorship. Since these are court actions, you may want to discuss the procedures with an attorney knowledgeable in this area.
Answered on Nov 23rd, 2011 at 2:23 PM
Donald B. Lawrence
Based on your statement that he rarely has lucid moments, you may not be able to get a power of attorney for him. Understand that a power of attorney is a delegation of authority from a competent person (the "Principal") to allow an agent to act on behalf of the principal. However, you can obtain this authority through an Order of the Probate Court granted upon petition. You will likely need the assistance of an attorney to prepare a Petition for Appointment of a Conservator for your father. As a relative you will have standing to file this but will need certification of your father's condition from a physician to provide to the Court in support of the petition. The petition will have to be noticed to other relatives. Upon your appointment, your letters of authority will be issued by the Court. Since you indicate some of the steps you feel are necessary to be taken, those should also be set forth in the petition.
Answered on Nov 23rd, 2011 at 2:22 PM
Business Entity Formation Attorney serving Poughkeepsie, NY
Partner at
Law Offices of Lorenzo L. Angelino
2 Awards
With someone that is already diagnosed with dementia, you must apply to the court for an Article 81 Guardianship over his property, in order to sell the property and pay the bills.
Answered on Nov 23rd, 2011 at 2:21 PM
Probate Attorney serving Newport, OR
at
Minor, Bandonis & Haggerty P.C.
Update Your Profile
It sounds like your father does not have capacity to give you power of attorney. You need to file for Conservatorship, which is a court-appointed fiduciary power.
Answered on Nov 23rd, 2011 at 2:20 PM
Ancillary Probate Attorney serving Dallas, TX
at
Burdette & Rice, PLLC
Update Your Profile
Depending upon the level of your father's capacity, it may be too late to obtain authority under a Power of Attorney. If your father has lost the ability to understand the effect of these sorts of estate planning documents, if he has lost the ability to enter into contracts and if he is "90% of the time" incoherent, that avenue might well be closed to him. Your alternative to affirmative incapacity planning by your father is often found in the guardianship and conservatorship proceedings of the jurisdiction that he resides in. Sounds like you'd have a pretty easy case to prove. Think of it this way: A POA is something that your father could have signed to provide for his own incapacity. Guardianships and conservatorships work like Court-initiated POAs the Court steps in to provide for your father largely because your father did not address this possibility in his own planning.
Answered on Nov 22nd, 2011 at 11:01 PM
Family Law Attorney serving Knoxville, TN
at
Patel & Eisenhower, PLLC
Update Your Profile
Your father be the one to sign a power of attorney appointing you. However, since he has dementia he will obviously not be able to. You will need to speak with an attorney about a Conservatorship petition asking the court to appoint you as the conservator.
Answered on Nov 22nd, 2011 at 12:54 PM
Trust Attorney serving Cincinnati, OH
at
Paul A. Nidich Attorney at Law
Update Your Profile
Sorry, but the person giving the power of attorney must be competent to do so. You might catch him a one of the 10% periods, but I tend to doubt it.
Answered on Nov 22nd, 2011 at 12:45 PM
Glen Edward Ashman
It sounds like you waited far too long and cannot do what you ask. POAs are to be done when someone is competent. You may be able to go to court and obtain guardianship.
Answered on Nov 22nd, 2011 at 12:45 PM