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

By Heather Frances J.D.

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.

Required Competence

An incompetent person cannot validly execute a power of attorney for finances. The person granting the power, called the principal, must understand what a power of attorney is, what it authorizes and be able to appreciate the extent of his property. Typically, the principal must demonstrate this competence to the satisfaction of the witnesses or notary at the time of signing. If the principal seems confused or incompetent, the witnesses or notary are legally required to refuse to sign the power of attorney.

Intermittent Incompetence

If your father’s incompetence comes and goes, perhaps due to a disease like Alzheimer’s, he may execute a power of attorney for finances during a time when he is competent. State law or his financial institutions may require a statement from his physician that your father is competent at the time of signing. If your father can never regain his competency, a power of attorney is not possible.

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Conservatorship

When a person cannot regain competence, he may need a conservatorship, sometimes referred to as a “guardianship of the estate.” Terms and laws vary from state to state. A conservatorship names someone -- a conservator or guardian -- to be responsible for the assets and finances of an incapacitated person. If a court names you as your father's conservator, you will have similar authority to that enjoyed under a power of attorney for finances, including the ability to protect and manage your father’s income, property and finances.

Filing for Conservatorship

Generally, to become your father’s conservator, you must petition a probate court in the county where your father lives. The court may hold a hearing to determine whether your father is legally incompetent to handle his own financial affairs, which may involve testimony from his health care providers. If he is incompetent, the court will appoint an appropriate person to act as his conservator. If there is no objection, the court may appoint you by giving you “Letters of Conservatorship” as evidence that you have power to act on your father’s behalf.

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References

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