When a parent gets sick, he may no longer be able to care for himself and may need someone to help him make decisions. If your father cannot make his own health care decisions or manage his own finances anymore, someone else can do these things for him by acting as his agent through a power of attorney. However, if your father doesn’t already have a power of attorney in place, it may be too late to sign one when he gets sick.
Health Care vs. Finances
A power of attorney for health care allows your father to name someone else -- his agent -- to make health care decisions for him should he become unable to make those decisions for himself. A power of attorney for finances enables someone to take care of your father’s financial affairs, such as accessing his bank account, paying his bills and selling his property. Either can be drafted very narrowly to give the agent only a few powers or drafted broadly to give the agent a wide range of powers.
Your father must be competent before he can sign any type of power of attorney. If your father’s illness does not impact his mental capacity, he may still be able to create a power of attorney. As long as your father can fully understand the importance of the decision he is making and is capable of articulating his decisions, he may be competent to sign. If your father’s illness impacts his mental capacity, such as dementia or Alzheimer’s, he usually cannot sign. However, if his competence comes and goes, he may sign during his competent periods. In such situations, it may be advantageous to get a physician to certify his competence should someone question the power of attorney later.
Choosing an Agent
Only the person granting the power of attorney -- the principal -- can choose the person he wants to act as his agent, which means your father must choose his own agent. You can’t choose an agent for your father, and if your father is too sick to choose his own agent, he’s likely too sick to legally sign the power of attorney.
Conservatorship or Guardianship
If your father lacks the mental capacity to choose his agent or sign his power of attorney, you may have to pursue a conservatorship or guardianship in probate court. A conservatorship is a process through which one or more persons are court-authorized to take care of the financial affairs of a person who cannot take care of himself. Guardianships are also court-authorized, but a guardian takes care of personal decisions for the incapacitated person, such as medical care or where he should live. Though state laws vary, conservatorships and guardianships generally are initiated when an interested person, such as a family member, petitions the local probate court for appointment as the incapacitated person’s conservator or guardian. Courts usually give family members priority when appointing conservators or guardians.
Read More: Power of Attorney Vs. Conservatorship
- Coalition of Wisconsin Aging Groups: Requirements for a Valid Power of Attorney for Health Care
- Dementia Guide: Understanding Dementia: Competence and Capacity
- Minneapolis Legal Aid: Powers of Attorney
- Wake Forest University: Elder Law Clinic: Guardianship or Power of Attorney
- Minneapolis Legal Aid: Guardianships and Conservatorships
Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.