Can My Spouse Complete a Power of Attorney After the VA Finds Incompetency?

By Heather Frances J.D.

You may not realize you need a power of attorney to act on your spouse’s behalf until after he becomes mentally incapacitated, but mental competency is a key requirement for a legal power of attorney. If your spouse is no longer competent, he cannot sign a power of attorney, and you may need to obtain court permission to act on his behalf. If the Department of Veterans Affairs has already determined your spouse is not competent to handle his financial affairs, a fiduciary will be appointed for him.

Types of POAs

While your spouse is competent, he can create a power of attorney to give you authority over his finances. He can grant broad authority for you, his agent, to access all his accounts or limited authority to access one account. Your spouse can also give you authority to make health care decisions for him. Typically, a durable health care power of attorney is executed while the signer is competent, but may be used if he becomes incompetent and cannot make his own health care decisions.

Mental Capacity

To sign either type of power of attorney, your spouse must be mentally competent. That is, he must be able to fully understand his financial obligations and the authority he is granting under the power of attorney. He should also be able to explain to whom he is granting authority and even why he chose that person. If your spouse isn’t able to indicate his competence at the time of signing, he cannot legally sign the power of attorney document.

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Conservatorship

If your spouse’s incapacity is permanent, your only option may be to apply for a conservatorship -- also called a guardianship of the estate. State laws on conservatorships vary, but a conservatorship usually means you are appointed by the court to manage your spouse’s affairs because he cannot take care of them himself. Generally, you must file a petition with the probate court where your spouse lives and provide evidence, such as testimony from a doctor, that proves your spouse is incapacitated. Once the court is satisfied that a conservatorship is in your spouse’s best interests, it may appoint you as conservator.

Fiduciary Program

If the U.S. Department of Veterans Affairs believes your spouse is not competent to manage his financial affairs, they will not pay benefits directly to him. Instead, they will appoint a “fiduciary” for your spouse; the fiduciary will receive benefit payments on behalf of your spouse and make sure the money is used to support him and pay his debts. The VA prefers to appoint family members as fiduciaries for incompetent beneficiaries, so you may volunteer to be appointed for your spouse.

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Power of Attorney Guidelines for State of Oregon
 

References

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New Jersey Durable Power of Attorney

Granting power of attorney to someone you trust allows that person to take care of your legal, financial and medical affairs on your behalf. In New Jersey, a "durable" power of attorney lets another person take care of your affairs even if you become incapacitated.

My Father Is Incompetent & I Need to Become the Power of Attorney

A power of attorney for finances would allow you to manage your father’s money and other financial affairs when he is unable to do it himself. However, a power of attorney can only be signed when a person is competent. Thus, you may need to pursue another option, such as a court-appointed conservatorship, if your father is no longer competent to sign a power of attorney.

Guardianship Laws for Adults

A guardian is a person or entity appointed by a court to care for a person who cannot meet his own needs, known as a ward. Although the powers and duties of guardians are similar to the powers and duties of parents with respect to minor children, a court cannot appoint a guardian for an adult unless he is subject to a disability that prevents him from effectively caring for himself. State law governs guardianships.

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