Advance Directives: When a Power of Attorney Holder Becomes Incompetent

Advance directives — including living wills and, if desired, Do-Not-Resuscitate (DNR) orders — for our senior loved ones and even family caregivers are very important, we believe.

Making end of life wishes clear is crucial, both for each individual and their family members. It’s also vital to designate who will look out for your interests and desires when the time comes to assure your wishes are honored.

It doesn’t end when you’ve done that, though…

Power of Attorney Holder

Your senior loved one has done what is needed and selected people trusted to honor their final wishes and assure they are carried out for your senior when she or he no longer can speak for themselves.

Fast forward five to ten years (or more) in the future and the holder of the power of attorney, the one charged with seeing that your senior loved one’s final wishes are followed, is now incompetent to carry out that role and may even be causing trouble due to their incompetence.

  • Who should be informed?
  • What steps need to be taken legally to have that person removed as holder of the power of attorney (agent) before they cause harm through their actions?
  • Who should be chosen as a replacement?
  • What do you do now?

Usually the power of attorney and any legal considerations of advance directives vary from state to state, so check with your own attorney to be sure that any changes are handled according to the laws in your state.

Incompetent to Serve – Options for Caregivers

When someone becomes incompetent to perform a duty it means that they, possibly due to an accident or medical condition, can no longer serve or make decisions for someone else, such as for your senior loved one. They are unable to make decisions for the principal, your senior loved one, and probably themselves. If your senior’s agent becomes incompetent, they could make decisions regarding healthcare or finances that are not in your senior’s interests or contrary to what was set forth as your senior’s wishes.

In many instances an alternate power of attorney or agent is named in the event that the primary person is unable to serve, whether from their own incompetence, because they choose to no longer be involved or if they are not available. Your senior loved one may have selected more than one person. In this case, the alternate person would be in charge.

Your senior can also designate more than one person and stipulate that these agents must act together, needing approval of each person to carry out any decisions. This will mean that one who becomes incompetent can’t make decisions against your stated wishes without the approval of those who are competent to act on your behalf.

If alternate agents are named but are now all unable or incompetent to serve as decision maker when the time comes, a guardian can be appointed to oversee the wishes of your senior loved one. The guardian will be appointed by a court. The court can hear testimony about the wishes of your senior loved one to be sure their choices are being followed.

Early Action Best When Possible

Before your senior becomes incapacitated, if they feel that their agent is incompetent they can revoke the power of attorney and designate another to take over the duties. The agent, who is thought to be incompetent, should be notified in writing of your senior’s desire to remove them from the advance directive. Please note that the process varies from state to state but most require this written notification.

It is important to inform anyone with whom your senior has done business – financially or medically – of the change in agent and provide copies of your senior’s revised advance directives so that their file can be updated with the changes.

If your senior loved one is not of sound mind in order to revoke an incompetent agent, family members can go to court and request that a judge put restrictions in place to limit the agent’s power over your senior’s affairs.  The court can force the agent to show how money was spent or decisions made. It can also appoint another agent or guardian to oversee your senior’s wishes.

Unfortunately this often isn’t considered until the power of attorney holder is needed. It can become more problematic when decisions need to be made and agents can’t make them as making changes to an existing power of attorney can take some time.

Being aware of potential pitfalls and planning ahead for them by setting up alternate agents or a group of agents may make things easier for family caregivers as the future unfolds.

Have you experienced this problem and how did you handle it? We would love for you to share your story.

(Note: This discussion is meant to inform family caregivers and start an important thought process but is not legal advice. Family caregivers should strongly consider engaging the services of an Elder Law Attorney to assure their rights – and especially those of their senior loved one – are adequately protected.)

7 thoughts on “Advance Directives: When a Power of Attorney Holder Becomes Incompetent”

  1. It seems like you truly fully understand plenty regarding this particular subject matter and that
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  2. For many years, I was involved with the financial management of an assisted living facility – about 20 facilities actually. I don’t recall a power of attorney ever becoming legally incompetent. But on a practical basis – I saw plenty of POA’s that really lacked competence in managing the finances or healthcare of their family member. It was frustrating on many levels – mostly to see a resident’s affairs managed so poorly. Thanks for this post – and I would also be interested in your thoughts on training and resources for POA’s that have certain responsibilities placed on them that they may have never expected.

    • Mike, thanks for your comments! We have seen POAs become incompetent and need someone else to step in. We feel like with advancing dementia numbers, we may see this more in the future. Anytime you can give more info to someone, in this case POAs to help them understand and execute their role more effectively, the better. We feel that many POAs are unaware of what they will be called upon to do including end of life decisions. Look forward to future interaction with you!

  3. My brother is in the early stages of Alzheimers. He has power of attorney for my mother, along with my sister and me. If his wife is his power of attorney, would she automatically take his place as Power of Attorney for my Mom

    • That is a good question Jean. It is very important to review documents such as advanced directives regularly to be sure that the proxies are still capable and willing to carry out the responsibilities. If poor health, cognition, distance or death interferes with executing the documents, it is a good idea to update them before they are needed. We always recommend speaking with an elder law attorney in your state who can help you determine your senior’s legal affairs. Each state is a bit different, so checking with an attorney is important. Thank you!

  4. I am my aunt’s POA. She has started with dementia, but has yet to be deemed “incompetent” due to timing of getting her to the proper doctors. Her sister took her without my knowledge to a notary to have her sign a revocation of POA. How do I fight this, when she is clearly unable to make these decisions herself?

    • Sorry to hear of your situation Christine. We have heard this story so often. We recommend you seek the advice of an elder law attorney who can investigate your particular situation. After you speak with a professional, you may want to consider other options. Coercion in financial situations is a form of elder abuse. If this family member is taking advantage of your mom, you may also want to consider contacting the authorities to investigate. Good luck!

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