Most persons suffering from a mental illness are still competent to write a power of attorney. If you question their ability, 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 principal will have no say in selecting who will take over her management of finances and healthcare.
Read More: Power of Attorney in Nevada
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 legally 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.
Psychiatric Advance Directives
A competent person may also prepare a psychiatric advance directive, which is a document that appoints someone as the decision-maker in the event the person becomes mentally incompetent in the future due to mental illness. The directive may also outline treatment decisions that she would want made in certain circumstances. Like a power of attorney, the document must be drafted during a period of competence and lucidity.
- Any time a mentally ill individual becomes violent, the police should be called, charges pressed against them and a mental evaluation should be done. The mentally ill do not always know they are being violent and this can be the only way to establish that the individual has a mental illness if they are not cooperative.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.