It’s not unusual for estate planning attorneys to get calls from adult children who are in quite a bind: They have a parent who is incapacitated, often due to Alzheimer’s or another form of dementia, and the parent did not put an incapacity plan in place while they were healthy and lucid. The adult child is not authorized to access the parent’s financial accounts, handle the parent’s bills, or take care of the myriad other day-to-day issues that tend to crop up. What can be done?
Unfortunately, once a person has become mentally incapacitated, it’s too late for them to make a Power of Attorney (or any other legal document, for that matter). One of the requirements for putting in place a Power of Attorney is that the person signing the document must have the mental capacity to understand what they’re doing. No one else, including a spouse or an adult child, can make a Power of Attorney on behalf of a person who is already mentally incapacitated.
Many times, when this situation presents itself, the solution is for the child to petition the probate court for Guardianship or Conservatorship of the incapacitated parent. Under this court proceeding, commonly known as Living Probate, a judge appoints someone to manage the personal and/or financial affairs of the incapacitated person. The person appointed to serve in this capacity (often a family member) then becomes obligated to report to the court the actions taken on behalf of the incapacitated person.
Understandably, most people would prefer to avoid the time, expense, and court oversight that accompany Living Probate. This is why it’s essential to put an incapacity plan in place while you’re healthy and able to act for yourself. And, if you have a mom or dad who’s getting older – or even who has been recently diagnosed with an illness – you’ll want to encourage them to see us as soon as possible. Our Elder Law Attorney, Beverly Eckard, has helped many families in this situation and would be happy to help you as well.
