Making the difficult decision to assume legal authority over a parent’s life is often a last best option to protect and care for a parent who meets the legal definition of incompetent. Power of attorney is an option only when a parent is competent to make the choice and voluntarily signs the legal documents. Legal guardianship is the option when a parent is incompetent or has not established power of attorney.
The legal definition of incompetence refers to the inability of a person to understand and make rational decisions. An elderly person who needs help because she is frail, disabled or ill may be incapacitated, but not incompetent. Common causes of incompetence are strokes, dementia and Alzheimer’s Disease. While a doctor may declare a person incapacitated and family members may suspect incompetence, only a court of law can declare a person legally incompetent.
Power of Attorney
A competent individual can establish power of attorney that becomes effective if he becomes mentally incapacitated. If your parent has named you the designated agent in his power of attorney, you might be able to assume legal control and make decisions for your parent. The type of POA determines how and if you are able to claim power of attorney. The springing POA either prescribes a method for determining incompetency, such as a doctor’s statement, or it does not and leaves it to the agent to make the determination.. A durable POA becomes effective when signed and remains in effect if your parent becomes incapacitated or incompetent. A nondurable POA becomes effective when signed, but ends when your parent becomes mentally incompetent.
If your parent has not established durable POA or has become incompetent after establishing a nondurable POA, you will need to petition a local family or probate court to declare your parent incompetent and grant you legal guardianship. Legal guardianship is called conservatorship in some states. The guardianship process is expensive, complicated and often lengthy. The court, which might request medical and psychological evaluations, will hold a competency hearing to allow presentation of evidence from your attorney and legal representatives of your parent. A court clerk or jury makes the competency determination and, if appropriate, appoints one or more guardians.
Responsibilities and Duties
The legal guardianship granted by a court can include control of your parent’s finances, health and welfare and safety. Courts supervise legal guardians to ensure that the subject’s rights are protected and the guardian acts in the subject’s best interests when making financial decisions, monitoring the use of assets and making health and welfare decisions. Your fiduciary duty includes record-keeping and reporting to the court.
Gail Sessoms, a grant writer and nonprofit consultant, writes about nonprofit, small business and personal finance issues. She volunteers as a court-appointed child advocate, has a background in social services and writes about issues important to families. Sessoms holds a Bachelor of Arts degree in liberal studies.