What Is Needed for the Power of Attorney When a Spouse Is Incapacitated?

By Jeffry Olson, J.D.

What Is Needed for the Power of Attorney When a Spouse Is Incapacitated?

By Jeffry Olson, J.D.

A power of attorney is a document in which the person signing the document, known as the "principal," authorizes another party, known as the "agent," to act on their behalf. The authority given to the agent is provided in the terms of the document.

Man talking on telephone while wife is sleeping in bed behind him

A power of attorney is distinguished from a conservatorship, or guardianship, where a judge appoints a party to act on behalf of the principal. One clear advantage of a power of attorney is that it is executed privately, without involving a court. The power of attorney also allows the principal to select the agent.

Mental Capacity

For a power of attorney to be legally binding, the principal must have mental capacity. Without mental capacity, the principal is unable to execute a power of attorney.

It is vital that parties execute a power of attorney as soon as possible. Delay in doing so might mean it is too late to execute a power of attorney. As a result, family members may be forced to seek a conservatorship from a court.

Considering Categories of Power of Attorney

The term "power of attorney" is used as a general term and is somewhat simplistic. Different types and categories of power of attorney exist. Types have to do with areas over which the authority is given and they include general, specific, health care, and financial. Categories deal with when the authority is given and its extent. These include conventional, durable, and springing. Each power of attorney is impacted differently by incapacitation. Be aware, too, that every type and category of power of attorney ends upon the death of the principal.

Incapacity and Conventional Power of Attorney

A conventional power of attorney is often used for a limited purpose—to assist the principal in a specific task or daily activities. A conventional power of attorney ends when the principal becomes incapacitated. It is not intended to provide for the needs of the principal after incapacitation. A conventional power of attorney may result in the need for a conservatorship in the future.

Incapacity and Durable Power of Attorney

A properly drafted and executed durable power of attorney remains in effect after the principal becomes incapacitated—it is intended to meet the needs of the principal even after incapacitation. It avoids the possibility of a conservatorship in the future.

Incapacity and Springing Power of Attorney

A springing power of attorney is a type of durable power of attorney that becomes effective when a "springing" event occurs, as defined by the language of the document. Frequently, that springing event is the incapacitation of the principal. In that case, the power of attorney becomes effective and remains in effect after the principal becomes incapacitated. A springing power of attorney is helpful to avoid the possibility of a conservatorship in the future and to have a power of attorney in place only if and when it's needed.

Power of Attorney and Incapacitation

A durable power of attorney allows family members to make decisions about the care for a loved one in private after incapacitation. However, a principal executing a power of attorney must have capacity to execute the document. After an individual is incapacitated, the family must use the courts and obtain a conservatorship. Discussing executing a power of attorney with a loved one may be awkward, but it is much easier than hiring a lawyer and going to court to seek a conservatorship.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.