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

Children facing the prospect of caring for a mentally incompetent parent often consider using powers of attorney to be better able to provide care. However, powers of attorney must be granted by a parent who is not yet incompetent. Once a parent loses the ability to make decisions, however, that parent can no longer grant a valid power of attorney.

Any adult who is of sound mind can grant other people or organizations power of attorney. The person granted this power becomes known as the agent or the attorney-in-fact, while the person granting it is called the principal. A principal does not need anyone's permission to grant someone else power of attorney and can do so without going to court. Powers of attorney must be conveyed in writing, and the principal must be mentally competent when making the grant.

The safest way to ensure you are able to care for your parents' needs no matter what happens is by having them grant you a durable power of attorney. Durable powers allow you to act even after the parent becomes incompetent. Typically, powers of attorney automatically terminate once the principal is rendered unable to make decisions, but durable powers do not. Like other powers of attorney, only a parent who is mentally capable can grant durable powers.

A power of attorney takes effect whenever the principal desires or when the power of attorney document dictates. Parents passing powers of attorney to their children often grant springing powers of attorney. These convey decision-making rights only upon the existence of specific conditions, such as if the parent falls ill or becomes incapacitated. Springing powers can also be made durable and must be granted by a legally competent principal.

If your parent becomes incompetent and has not yet granted you a power of attorney, there is no way you can become your parent's attorney-in-fact. The only option you have is to petition the court and ask to be appointed as your parent's legal guardian, sometimes known as a conservator. A guardian can only be appointed by a court, and the court must generally hold a hearing to determine whether appointing you to the position is in the parent's best interests.