Can You “Get” a Power of Attorney For Someone Else? What You Need to Know

When someone you care about loses the ability to make sound decisions due to illness, injury, or other circumstances, managing their affairs can quickly become overwhelming. But what happens if they never created a power of attorney and can’t seem to pull it together enough to make one anymore? People often ask us in those situations to help “get” a power of attorney from someone else. Is obtaining power of attorney without consent possible?

In North Carolina, the answer lies not in creating a power of attorney but in pursuing legal guardianship.

Let’s walk through what this process involves and how you can take steps to safeguard their well-being and interests.

Power of Attorney Legal Document: Is Legal Capacity Required?

Understanding how legal capacity plays into creating a power of attorney is essential when planning for your own future or managing the affairs of a loved one. If someone is mentally incapacitated, the process of obtaining authority to act on their behalf becomes more complex.

Let’s break it down so you know what to expect.

What Is Legal Capacity, and Why Does It Matter?

Legal capacity refers to the ability of an individual to understand and make decisions regarding their own affairs.

For a power of attorney (POA) document to be valid, the person granting authority—referred to as the principal—must be of sound mind at the time they sign it. This means they need to fully understand the powers they are granting, whether it’s for financial matters, medical decisions, or both.

Without legal capacity, a person cannot create or sign a POA document. If this happens, family members face additional legal hurdles to obtain authority to manage the individual’s financial and medical affairs.

How Does a Power of Attorney Work?

A power of attorney is a legal document that grants broad authority or limited authority to another individual, known as the agent or attorney in fact, to act on the principal’s behalf. The type of authority granted varies based on the needs of the principal.

• General Power of Attorney: Grants broad authority over financial and legal matters, such as accessing bank accounts, managing retirement accounts, and filing taxes.
• Durable Power of Attorney: Remains effective even if the principal becomes mentally incapacitated, ensuring that financial and medical decisions can continue without interruption.
• Medical Power of Attorney: Specifically grants authority to make healthcare decisions and work with healthcare providers.
• Limited Power of Attorney: Grants authority to handle a specific task or for a specified event, such as selling property or completing legal actions.

What If the Principal Is Mentally Incapacitated?

When someone is no longer mentally competent and unable to create a POA document, family members cannot simply step in to handle financial and medical decisions.

In such cases, a POA form cannot be used. Instead, you must seek legal authority through the court system. In North Carolina, this often requires filing for guardianship.

How Guardianship Differs from Power of Attorney

Guardianship is a court-supervised process that allows a family member or another interested party to legally act on someone else’s behalf. Unlike a POA document, guardianship requires court approval and involves significant oversight by the court going forward.

• Guardianship of the Person: Covers healthcare decisions and personal care.
• Guardianship of the Estate: Includes authority over financial matters, such as managing bank accounts, paying bills, and handling estate planning documents.

Obtaining guardianship can be time-consuming and emotionally stressful. However, it is often the only option when a loved one is unable to create a durable power of attorney due to mental incapacity.

Steps to Take if Legal Capacity Is in Question

If you suspect that a family member is no longer able to manage their affairs, act quickly to protect their interests.

Here are the general steps to follow:

1. Consult an Attorney: Guardianship attorneys can guide you through the complexities of POA forms, guardianship, and other legal matters.
2. Submit Documentation: You’ll need medical evidence showing the individual is mentally incapacitated to support your case. Healthcare providers may need to testify or provide detailed records.
3. Seek Court Approval: File for guardianship to gain legal authority to manage the person’s financial and medical decisions.
4. Involve Interested Parties: Notify family members and others of the legal actions you’re pursuing.

Why Planning Ahead Matters

Creating estate planning documents, such as durable powers of attorney and healthcare proxies, is crucial while an individual is mentally competent. These documents help avoid the need for court involvement and ensure that someone they trust can manage their affairs when they can no longer make their own decisions.

However, once a person no longer possesses mental capacity to handle their own affairs, a guardianship may become necessary.

Determining Whether Your Loved One Needs a Power of Attorney or Guardianship

Making decisions about your loved one’s future can feel overwhelming, especially when navigating the legal distinctions between a power of attorney (POA) and guardianship in North Carolina.

Understanding your options ensures that you choose the best path to protect their interests while respecting their independence.

What Is the Difference Between a Power of Attorney and Guardianship?

A power of attorney is a legal document that grants authority to an individual, called the agent or attorney in fact, to make decisions on behalf of another person, known as the principal. This document is proactive, meaning the principal must be mentally competent to create it. A POA can cover financial matters, medical decisions, or both, depending on the type of POA chosen.

Guardianship, on the other hand, is a court-appointed process for individuals who are no longer able to manage their own affairs and did not set up a POA beforehand. Guardianship can involve managing financial, personal, or medical matters, and it requires legal proceedings to prove incompetency and establish authority.

When Does Someone Need a Power of Attorney?

A power of attorney is essential for anyone who wants to prepare for potential incapacity while they still have the ability to make their own decisions. If your loved one is mentally competent, creating a POA allows them to decide who will handle their financial or medical matters if they become unable to do so.

• A financial POA lets the agent manage bank accounts, retirement accounts, and other financial decisions.
• A medical POA grants the authority to make healthcare decisions and communicate with providers.

Establishing a durable power of attorney ensures that these permissions remain valid even if the principal becomes incapacitated.

When Is Guardianship Necessary?

If your loved one is already unable to manage their affairs and cannot create a POA due to mental incapacity, guardianship may be the only option.

Guardianship proceedings involve proving in court that the individual is legally incompetent. Once appointed, a guardian can act on their behalf, handling their financial and medical affairs with court oversight.

This legal process, while effective, can be time-consuming and emotionally taxing for family members. However, it provides a solution when no other estate planning documents exist or a crisis arises.

Let Hopler, Wilms, and Hanna Guide You Through

At Hopler, Wilms, and Hanna, we understand that every family’s situation is unique. Whether you need to create a POA for a loved one’s future or establish guardianship for someone already unable to make their own decisions, we guide you through the process with care and clarity.

Our team focuses on making these legal matters as smooth and straightforward as possible while ensuring your loved one’s best interests remain the priority.

If you’re unsure whether your loved one needs a power of attorney or guardianship, we’re here to help. Call us today at (919) 244-2019 to schedule a consultation. Let us help you secure the peace of mind you deserve.