Whether you are looking to appoint someone to make decisions on your behalf or planning for your aging loved one’s future, a power of attorney (POA) can help provide flexibility and security in managing one’s personal and financial affairs.
You can create a power of attorney at any time as long as you are a legal adult and mentally competent. But what if you or your loved one loses mental competence before establishing a POA? Is it then too late to create one? These answers might provide some clarity.
Do you need to prove mental capacity for a POA?
Under Texas law, an individual must be at least 18 years old and of “sound mind” to create a power of attorney. Having a sound mind or mental capacity is not always a clear-cut distinction, but it generally means that the person creating the POA must comprehend the effect and extent of the document.
If your loved one is no longer mentally competent due to a disability or cognitive disease, it may be too late for a POA. However, you can still protect their best interests by seeking guardianship or conservatorship. It is advisable to consult with an estate lawyer who can help determine the best option for your situation.
On the other hand, if you are looking to create a POA for yourself, consider a durable power of attorney. It will allow your trusted agent to manage your affairs even if you become mentally incapacitated.
When should you create a POA?
Aging individuals should set up their powers of attorney as early as possible. This will avoid losing the ability to do so if their cognitive abilities decline. If you have an elderly parent, encourage them to appoint an agent sooner rather than later.
What if you want to create one for yourself but are still young enough to not worry about cognitive disease? You might still want to create a POA to let someone manage your affairs in case of:
- Health emergencies
- Sudden disability
- Long-term travel abroad
- Military deployment
A power of attorney is a crucial tool for taking care of someone’s estate, especially if that person can no longer make decisions for themselves. Unfortunately, it can be too late for a POA if mental incapacity occurs, which is why early filing is so important.
