September 17, 2020

A person cannot sign any legal document including one that would appoint a power of attorney if they are incapacitated. This is one of the most common misconceptions about the power of attorney document. Only a mentally competent individual is able to appoint a power of attorney for themselves.

Once a person lacks legal capacity such as that they have experienced significant cognitive decline as a result of dementia or another circumstance, they are no longer eligible to execute a power of attorney document that would be classified as legally valid. These documents need to be created well in advance of a person being classified as incompetent.

It can be helpful for someone who is of older age and wishes to prevent problems surrounding their POA document to schedule a consultation with an estate planning attorney to walk through the process of creating a POA and deciding whether it should be general or specific in nature. It is also helpful for a person who is currently legally competent and wishes to document this to have a physician prepared to write a letter about the person’s state of mind at the time that the power of attorney is executed.

This can be very helpful in the event that another person is challenging the legality of the power of attorney or any other challenges arise in the agent’s attempt to carry out their duties. Schedule a consultation with an estate planning attorney in your area to learn more.   Since you need to sign a POA before you’re incapacitated, now is the right to make this decision to install the right person in this all-important role.