I once met with a family dealing with a terrible, unexpected crisis. A family member had been seriously
injured in an automobile accident and faced months – possibly years – of recovery. His cognitive
abilities had been seriously affected. For at least the foreseeable future, he would not be able to make
any decisions. However, legal, financial and other decisions still had to be made.
He needed a power of attorney. A power of attorney is a document which allows you to grant another
the authority to act for you. A person granted authority under a power of attorney can pay bills, or deal
with banks, investments, taxes, etc. Granting a power of attorney does not mean you have given up any
authority. It simply means someone else can also handle tasks for you.
Unfortunately, this person had not signed a power of attorney. Once the accident occurred, it was too
late. If someone does not have the capacity to make decisions, they do not have the capacity to sign a
power of attorney.
This man’s affairs still had to be addressed. However, the banks or other institutions were not going to
work with family members to handle those affairs. Simply being a family member, even a spouse, does
not carry sufficient authority to make decisions on which others can rely.
In these circumstances, the only alternative is usually to go to Court and have someone appointed as a
guardian. This appointment will authorize the guardian to handle the same responsibilities that could
have been handled with a power of attorney. However, the process to become a guardian is much more
complicated and expensive. A guardianship can only be granted by a judge, and only after input from a
health care provider, a social worker and another attorney. On the other hand, a power of attorney only
requires your signature, so long as you still can decide you want a power of attorney.