What would make my grandfather

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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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 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.


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