How can I obtain a power of attorney for someone mentally incapacitated?

Full question:

I want to sign for a general power for some mental sick person. What can I do?

• Category: Guardianship
• Date: 04/07/2025
• State: New York

Answer:

If a person is mentally incapacitated, they may lack the ability to sign a power of attorney. In such cases, a guardianship may be necessary. Guardianship is typically required when a person cannot care for themselves or manage their affairs. A medical opinion may be needed to assess whether the individual can make their own decisions.

A court can appoint a guardian for someone deemed incompetent due to mental or physical illness, disability, or substance abuse. The court will evaluate if the person can receive and evaluate information or make decisions, especially regarding financial matters.

A guardian may be granted authority to make personal decisions for the individual (the ward), including health care and medication consent. This type of guardian is known as a “guardian of the person.” The court may also appoint a guardian to manage the ward’s finances and property, referred to as a “guardian of the estate.”

Guardianship creates a legal relationship where the guardian is responsible for the ward's care and decision-making. For minors, guardianship can cover the child, their property, or both, and remains under court supervision until the child reaches adulthood. A guardianship restricts the ward's rights to contract, marry, manage money, or make personal decisions.

Guardians may make decisions about living arrangements, education, social activities, and medical care. While they typically do not manage the ward's income or property, they can receive funds for the ward's support, such as social security, as a representative payee. In some states, if a minor inherits property above a certain value, a guardianship may be required, even if they live with parents.

After a guardian is appointed, an inventory and appraisal of the ward’s assets must be filed, along with regular accountings to the court until the minor turns eighteen. If there is a dispute over guardianship, the court may appoint a guardian ad litem to investigate and provide recommendations. The ward may also hire separate legal counsel, and if they cannot afford one, the court may appoint counsel for them.