How to Obtain a Power of Attorney for a Mentally Ill Person

By Teo Spengler - Updated June 05, 2017
Woman consulting with a doctor

Most persons suffering from a mental illness are still competent to write a power of attorney. If you have some question, work with the person's doctor to determine whether and when she is mentally competent. You'll need to explain the document to her and arrange for her to sign it while she is competent.

Mental Illness Power of Attorney

A power of attorney, or POA, is a legal document that a competent adult can use to appoint an agent to act on her behalf. The person making the document, called the principal, chooses the person who will be the agent – also called attorney-in-fact. The principal also determines the scope of the authority granted. For example, a POA can confer very limited authority, like the power to transfer a car for the principal or sell a home, or it can be very broad, giving the agent the power to manage all of the principal's finances or health care.

Generally, a power of attorney terminates when either party dies or becomes mentally incompetent. But a durable power of attorney contains specific language that allows the authority to continue after the principal becomes mentally incompetent.

Some people consider durable powers of attorney for finances and health care essential documents for anyone doing serious estate planning because once a person becomes mentally incompetent, she can no longer make a power of attorney. In that case, the court must appoint a guardian, and the person will have no say in selecting who will take over her management of finances and healthcare.

Power of Attorney and Mental Illness

Not every person with a mental illness is mentally incompetent. This is a stereotype that is simply untrue. Mental disorders and illnesses are very common and, while sometimes limiting the person's scope or happiness, they usually do not limit their mental competency. Depression is a good example. Luminaries and leaders are known to have suffered clinical depression including Sir Winston Churchill, Virginia Woolf and Earnest Hemingway. Many people struggle with depression, bipolar disorder and other mental issues, yet they are successful in keeping the disease in check with medication, and most are not incompetent.

If the person behaves rationally and seems capable of making everyday decisions, she is probably competent to create a power of attorney. Talk to her about the benefits of a power of attorney to evaluate her ability to understand the authority she would be granting and to select an agent to act for her in certain areas.

If the person has a mental illness that makes her mentally incompetent in phases, work with her doctor to find a time when she is competent. At that point, discuss a power of attorney with her to see if she is interested. If so, be sure that the language of the document reflects her intent and that she signs it as state law requires.

About the Author

From Alaska to California, from France's Basque Country to Mexico's Pacific Coast, Teo Spengler has dug the soil, planted seeds and helped trees, flowers and veggies thrive. World traveler, professional writer and consummate gardener, Spengler earned a BA from U.C. Santa Cruz, a law degree from Berkeley's Boalt Hall, and an MA and MFA from San Francisco State. She currently divides her life between San Francisco and southwestern France.

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