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Power of Attorney
Is a power of attorney valid if the principal is incompetent?

Is a power of attorney valid if the principal is incompetent?

Q: Can a family member take over power of attorney?

A family member can take over a power of attorney if they are designated as the alternate agent in the original POA document. If the principal is incapacitated and no alternate is named, you may need to go through the court system to obtain guardianship or conservatorship to manage the principal's affairs.

Q: How to take power of attorney when one is mentally incapable?

If someone is mentally incapable, you cannot obtain a power of attorney from them. Instead, you may need to seek guardianship or conservatorship through the court, which allows you to make decisions on their behalf. This process typically involves proving the individual's incapacity in court.

Q: Can you transfer power of attorney to someone else?

You can transfer power of attorney to someone else if you are still competent. This involves drafting a new POA document that revokes the previous one and designates the new agent. If the principal is incapacitated, the existing agent may need to seek court approval to transfer their authority.

Full question:

Is a Power of Attorney legal if a family member takes it upon himself to get a power of attorney, and has the principle sign even though the principal is already incompetent?

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

Answer:

For a power of attorney (POA) to be valid, the person granting it (the Principal) must be mentally competent at the time of signing. This means the Principal should understand the powers they are granting to the Agent (the attorney-in-fact) and the consequences of allowing someone else to make decisions on their behalf.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

How to take over power of attorney?

To take over a power of attorney (POA), you typically need to be designated as the new agent in a valid POA document. If the current agent is unable to act, you may need to obtain a court order or have the principal revoke the existing POA if they are still competent. If the principal is incapacitated, you may need to seek guardianship or conservatorship through the court to manage their affairs legally.

Can a family member take over power of attorney?

Can a POA override an advance directive?

Generally, a power of attorney (POA) cannot override an advance directive, such as a living will. An advance directive outlines specific medical decisions the principal wishes to be followed, while a POA grants someone the authority to make decisions on behalf of the principal. The POA must act in accordance with the advance directive unless the directive specifically allows for changes.

What three decisions cannot be made by a legal power of attorney?

A legal power of attorney typically cannot make decisions regarding: 1) the principal's own medical treatment if a healthcare POA is not in place, 2) decisions that are illegal or against public policy, and 3) any matter that the principal has expressly prohibited in the POA document. Always refer to the specific terms of the POA for limitations.