How can I obtain a power of attorney from my father who has dementia? 16 Answers as of February 17, 2012

My father has dementia. He is 90% of the time incoherent. I need a POA to be able to sell property and pay his bills.

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Raxter Law
Raxter Law | Jeremiah Raxter
At this point, it appears you may need to seek a conservatorship. You can petition the Court to be appointed his conservator. If your father lacks capacity (due to dementia) he would lack capacity to execute a POA. You should consult an attorney who practices in Conservatorships.
Answer Applies to: California
Replied: 11/29/2011
Goldsmith & Guymon
Goldsmith & Guymon | Dara Goldsmith
It is probably too late for your father to execute a power of attorney. He needs to possess a minimum of testamentary capacity to execute a power of attorney. It sounds like you will need to obtain legal guardianship through the courts to be appointed his guardian and be authorized to make both health care and financial decisions for him. The Clark County Family Courthouse has a self-help center where you can purchase forms or view them online if you want to try to prepare the paperwork on your own. It is not a seamless process so it is usually preferable to hire an attorney with significant guardianship experience to assist you.
Answer Applies to: Nevada
Replied: 11/28/2011
Martinson & Beason, PC
Martinson & Beason, PC | Douglas C Martinson II
If he has a lucid moment and can understand what he is doing and knows what a Power of Attorney is, he can sign one. An attorney would need to make that determination that he understands that.
Answer Applies to: Alabama
Replied: 11/22/2011
Hyman, Carter & Patel, PLLC
Hyman, Carter & Patel, PLLC | Mital D. Patel
Your father be the one to sign a power of attorney appointing you. However, since he has dementia he will obviously not be able to. You will need to speak with an attorney about a Conservatorship petition asking the court to appoint you as the conservator.
Answer Applies to: Tennessee
Replied: 11/22/2011
Paul Nidich, Attorney at law
Paul Nidich, Attorney at law | Paul Nidich
Sorry, but the person giving the power of attorney must be competent to do so. You might catch him a one of the 10% periods, but I tend to doubt it.
Answer Applies to: Ohio
Replied: 11/22/2011
    Ashman Law Office
    Ashman Law Office | Glen Edward Ashman
    It sounds like you waited far too long and cannot do what you ask. POAs are to be done when someone is competent. You may be able to go to court and obtain guardianship.
    Answer Applies to: Georgia
    Replied: 11/22/2011
    Law Office of J. Brian Thomas
    Law Office of J. Brian Thomas | J. Brian Thomas
    Depending upon the level of your father's capacity, it may be too late to obtain authority under a Power of Attorney. If your father has lost the ability to understand the effect of these sorts of estate planning documents, if he has lost the ability to enter into contracts and if he is "90% of the time" incoherent, that avenue might well be closed to him. Your alternative to affirmative incapacity planning by your father is often found in the guardianship and conservatorship proceedings of the jurisdiction that he resides in. Sounds like you'd have a pretty easy case to prove. Think of it this way: A POA is something that your father could have signed to provide for his own incapacity. Guardianships and conservatorships work like Court-initiated POAs the Court steps in to provide for your father largely because your father did not address this possibility in his own planning.
    Answer Applies to: Texas
    Replied: 11/22/2011
    Walden & Pfannenstiel, LLC : Kansas City Bankrutpcy Attorneys
    Walden & Pfannenstiel, LLC : Kansas City Bankrutpcy Attorneys | Malissa L. Walden
    Powers of Attorney are given by a person to their agent. If one is incapacitated, he is no longer able to give up those powers. That means that your father would not be able to assign you as his agent under a Powers of Attorney. The only way you would be able to take care of his medical and financial decisions on his behalf would be through a Guardianship / Conservatorship. Since these are court actions, you may want to discuss the procedures with an attorney knowledgeable in this area.
    Answer Applies to: Kansas
    Replied: 11/23/2011
    THE HUBBARD LAW FIRM, P.C.
    THE HUBBARD LAW FIRM, P.C. | Donald B. Lawrence, Jr.
    Based on your statement that he rarely has lucid moments, you may not be able to get a power of attorney for him. Understand that a power of attorney is a delegation of authority from a competent person (the "Principal") to allow an agent to act on behalf of the principal. However, you can obtain this authority through an Order of the Probate Court granted upon petition. You will likely need the assistance of an attorney to prepare a Petition for Appointment of a Conservator for your father. As a relative you will have standing to file this but will need certification of your father's condition from a physician to provide to the Court in support of the petition. The petition will have to be noticed to other relatives. Upon your appointment, your letters of authority will be issued by the Court. Since you indicate some of the steps you feel are necessary to be taken, those should also be set forth in the petition.
    Answer Applies to: Michigan
    Replied: 11/23/2011
    Law Offices of Lorenzo L. Angelino | Lorenzo L. Angelino
    With someone that is already diagnosed with dementia, you must apply to the court for an Article 81 Guardianship over his property, in order to sell the property and pay the bills.
    Answer Applies to: New York
    Replied: 11/23/2011
    Charles M. Schiff, Attorney at Law
    Charles M. Schiff, Attorney at Law | Charles M. Schiff
    A person giving Power of Attorney(POA) must be aware that he is doing so. If your father has dementia full time, you may need a Conservatorship rather than a POA. If your father has lucid times, he could sign a POA during a lucid period. If you anticipate any questions from other family members, you may want the backing of someone in the medical field.
    Answer Applies to: Minnesota
    Replied: 11/23/2011
    THE BROOME LAW FIRM, LLC
    THE BROOME LAW FIRM, LLC | Barry D. Broome
    You will need to have your father declared incompetent by the probate court, have the court appoint you as his guardian and conservator. Since he cannot form the intent to appoint you, a court order must be obtained.
    Answer Applies to: Georgia
    Replied: 11/23/2011
    Martin Barnes - Attorney at Law
    Martin Barnes - Attorney at Law | Martin Barnes
    I am sorry to hear about your father's failing health. A power of attorney must be prepared at the request of your father and it can only be executed if he has the mental capacity to do so. If your father is already incapacitated, it is not possible for him to sign and/or execute a valid power of attorney. Your father must have capacity in order to validly sign legal documents, including a power of attorney. If your father does not have the capacity to execute a power of attorney, other alternatives are available. For example, you can request the court to appoint a guardian to care for your father's property, business, personal and other needs. I encourage and advise you to contact an attorney that you trust to help your family and protect your father's interests.
    Answer Applies to: Indiana
    Replied: 11/23/2011
    Harville-Stein Law Offices, LLC
    Harville-Stein Law Offices, LLC | Dean D. Stein
    From your description, it is too Late for a power of attorney and you need to institute a Conservatorship/Guardianship proceeding in court.
    Answer Applies to: Alabama
    Replied: 11/23/2011
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    It sounds like your father does not have capacity to give you power of attorney. You need to file for Conservatorship, which is a court-appointed fiduciary power.
    Answer Applies to: Oregon
    Replied: 11/23/2011
    Broad Law Firm, LLC
    Broad Law Firm, LLC | Donald K. Broad
    If he is not mentally competent to sign a Power of Attorney, then your only option will likely be to seek a Court appointed guardian. In Indiana, the process for this task is to file a Petition to Appoint a Guardian, notifying all relatives of the proceeding. The Court then appoints a temporary guardian to determine for the Court if the person truly needs a permanent guardian. Then a hearing is held and a guardian is appointed. You can request that the Court appoint you as the Guardian. In Indiana, the process generally takes a month or two to complete. You should seek the advice of an estate planning or elder law attorney in your area.
    Answer Applies to: Indiana
    Replied: 2/17/2012
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