What would make my grandfather

UPDATED: Sep 30, 2022

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What would make my grandfather

Initially, my grandfather named my uncle as his power of attorney but my uncle passed 2 years ago. Last week, my grandfather was put in a home. He stated that he wanted me, his granddaughter, to be his power of attorney. However, the home is stating he may be too incapacitated to make a new power of attorney. What can I or should I do?

Asked on December 10, 2016 under Estate Planning, Pennsylvania


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

He is mentally incompetent to draft a power of attorney or appoint someone his "attorney in fact" or "agent" (those are the terms for the person given power by the POA) if he no longer understands what he is doing or cannot make an informed decision in his own interest. Incapacity is actually a legal, not medical concept: while the home or its medical staff can state that in their opinion, he is not mentally capable, until and unless there is a legal (i.e. court) determination that he is incompetent, he can make a POA. The POA will stand and be enforceable unless someone challanges it legally--claiming that he not  capable when he made it; or refuses to honor it, and the agent (you) has to sue them to force them to do so, and they raise the claim of incapacity as a defense in  that legal action--and a court decides, based on the evidence, that he was not mentally competent when he made the POA. So your grandfather can draft a POA which will be enforceable unless someone challenges it; and even if they challenge it, is enforceable unless, during that challenge, a court finds he was incompetent when he made it. 
The other option, if you feel they are right about your grandfather, is to yourself bring a legal action to have him declared incompetent and have yourself appointed his legal guardian, with power to make decisions, control his finances, etc. for him
To evaluate which option is best for your grandfather, consult with an elder law attorney about the specifics of his situation and medical condition.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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