What Will Happen if I Resign as My Mother's Agent in a Power of Attorney?

Full question:

I have a Durable Power of Attorney for my mother. She has been declared incompetent since granting me power of attorney. She did not name a successor. What would happen if I reliquished my Power of Attorney at this point?

• Category: Power of Attorney
• Date: 04/07/2025
• State: California

Answer:

If she were unable to handle her own affairs, a guardian would probably need to be appointed. A guardianship is a legal relationship created when a person or institution named in a will or assigned by the court to take care of minor children or incompetent adults.

To establish a guardianship, a petition is typically filed in state court where the ward lives. This petition usually names the potential guardian and provides information about the parties' relationship (if any) and usually any pertinent information about the heirs or estate of the ward. In the case of an adult ward, if mental incapacity is the reason for the petition, medical documentation should accompany the filing. Notice of the time and place of the hearing is given to the potential ward and other persons specified by statute. The documents are served on the interested parties at which point the proposed ward or his or her relatives can object to the guardianship request. A hearing is held. If the court finds sufficient evidence to order the guardianship, it may issue subsequent orders, which govern the relationship and the guardian's actions.

The court may appoint a guardian if it finds the person is incapacitated and the appointment is necessary to provide continuing care and supervision of the person. Incapacity can result from any number of conditions, including, but not limited to mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of alcohol or other drugs. Essentially, the court must be convinced that the individual lacks sufficient understanding or capacity to make or communicate responsible decisions. A guardian must submit written reports to the court according to the court's orders and the law of the jurisdiction in which the guardianship takes place. If a guardianship is contested, the court may appoint a disinterested third party to investigate and make recommendations. Usually called a guardian ad litem, this person evaluates both the necessity for a guardianship, and the appropriateness of the proposed guardian. The ward may also hire separate legal counsel. If the proposed ward is indigent, the court sometimes appoints counsel.