How do we obtain power of attorney from/for someone who is incapacitated and unable to speak for themselves at this time?

At this time my mother-in-law is in critical care and has named my husband as power of attorney but we are unable to have her sign the papers as she is unresponsive and unable to speak for herself. What do we have to do in order to make sure her bills/rent etc are paid and her checks cashed? She also has custody of my 15 year old niece and we need to know what to there as well.

Asked on December 10, 2011 under Estate Planning, Wisconsin


Sharon Siegel / Siegel & Siegel, P.C.

Answered 8 years ago | Contributor

I am a NY lawyer. A power of attorney cannot be executed by someone who is incompetent.  If the power was already executed (signed) then the agent just can simply use it to write checks to pay bills.  If not, the only way to proceed is by petioning the court to be appointed as guardian.  A guardian over property can pay bills.  A guardian over the person can make health care decisions if she does not have a living will or health care proxy.  You should consult a lawyer in your state.  If the person who is incompetent is in NY, I would be happy to speak with you.  Sharon M. Siegel, Esq. 212-721-5300

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