Power of Attorney & Mental Illness

By Roger Thorne J.D.
Mental illness can impact how power of attorney is used.

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Powers of attorney are legal documents or decrees that allow one person to make decisions on behalf of another. These documents often are used in health care situations where a person wants someone else to decide medical issues in the event of a serious illness or injury. When mental illness comes into play, various issues that affect the power of attorney can arise .

Terminology

Powers of attorney exist between at least two parties: the person granting the power and the person or persons receiving it. The person granting the power is typically referred to as the principal, while anyone receiving it is called either the agent or the "attorney in fact." For example, if a father decides to grant his daughter power of attorney for mental health care, the daughter becomes the attorney in fact. This only means the daughter can legally make decisions about the father's mental health care for him and doesn't mean the daughter is the father's attorney.

Requirements

Each state sets its own standards about who can grant power of attorney. Generally, anyone who wants to convey power of attorney (POA) can only do so if he is at least 18 years old, in sound mind and conveys the power in writing. Some states allow powers of attorney to be granted orally, but only in limited situations.

Capacity

To grant valid power of attorney, a person must be of sound mind. Generally, this means the person is old enough to grant consent and does not suffer from a condition that renders her unable to grant consent or understand her position. In mental health care situations, the power of attorney can only be granted by a person who is, at the time, of sound mind. If the person is not of sound mind, she cannot convey power of attorney.

Durability

Generally, powers of attorney become invalid immediately upon the principal's incapacity. In mental health situations, this means the the power of attorney terminates as soon as the principal is unable to revoke it. However, if durable power of attorney is granted, the right of the agent to make decisions can continue even if the principal is incapacitated or otherwise unable to revoke the power of attorney. Durability simply means the power of attorney doesn't end when the principal becomes incapacitated. This is particularly important in mental health care situations as the power of attorney may be intended to take effect only when the principal is not of sound mind.

Springing

A powers of attorney typically take effect immediately upon the principal granting it to the agent. However, powers of attorney also can be made such that they take effect only under certain circumstances. For example, a durable power of attorney for mental health care could be made to take effect only upon the principal's incapacity.

About the Author

Roger Thorne is an attorney who began freelance writing in 2003. He has written for publications ranging from "MotorHome" magazine to "Cruising World." Thorne specializes in writing for law firms, Web sites, and professionals. He has a Juris Doctor from the University of Kansas.

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