Who can become someone’s Power of Attorney?

UPDATED: Sep 30, 2022

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Who can become someone’s Power of Attorney?

A person was in the hospital and it was determined that they cannot live by themselves because they are not in their right state mind. Their son refuses to get involved. Can another family member become POA or assign someone else to act on the patient’s behalf? This would include medical, financial and estate decisions.

Asked on April 15, 2016 under Estate Planning, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Unfortunately, only the person himself (the father) can name someone as an attorney in fact (that's the term for the person with power under the POA) and they can only do so while competent to manage their own affairs, so if that person is now mentally incompetent, they cannot give anyone that power. The son is not required to act as the attorney in fact: he can refuse to get involved. A well-drafted POA would have a back-up attorney in fact, but I assume from your question that this one does not. That means that the only option is for a (preferrably) family member or a friend to bring a legal action in chancery or surrogates court (basically, file a lawsuit), asking the court to appoint someone as this person's guardian ad litem, or legal guardian, with power over their affairs and finances. It would be best to have an attorney help do this; an elder law attorney would be a good choice.

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