It is possible to write a power of attorney that takes effect right away. Someone may want to sign over their rights and authorize an agent to make decisions on their behalf. A power of attorney often covers healthcare decisions, but can also be used for legal or financial decisions.
In many cases, though, a power of attorney will be drafted to “spring into effect” only when the person is incapacitated. They don’t want to give up all of their rights immediately; they’re simply drafting the power of attorney for the future. If they become incapacitated, they want someone else to be able to make these key decisions on their behalf.
A decision from the court
Generally speaking, a court needs to determine that someone is legally incapacitated. This is an important step because there could be a disagreement among family members, such as if one sibling believes that a parent is incapacitated and the other does not. It could also lead to disagreements between the individual and their prospective agent. Someone who is experiencing cognitive decline may have moments of lucidity where they claim they aren’t incapacitated, despite needing assistance most of the time.
As a result, the court will often work in conjunction with medical professionals. If a licensed physician who understands the case believes that the patient is incapacitated, the court will consider this evidence when determining their legal status. Courts have the power to make this determination, but not always the knowledge, so evidence and statements from medical professionals are critical.
All of this can get fairly complex, so it’s important for those involved to understand their legal options.
