If your family member is truly incapacitated, then someone else will need to be making the decisions. A decision of incapacity is not based upon your opinion but is typically a decision made by a judge based upon the expert testimony of physicians. If someone is legally incapacitated, then they have lost the ability to make certain decisions on their own behalf. If they are not competent to make these decisions, then someone needs to make these decisions for them.
Can I get a Power of Attorney to make the decisions necessary?
A Power of Attorney must be granted by the person needing the assistance. A Power of Attorney (or Health Care Proxy in Florida) is a document that can give certain decusion making powers to the person or persons of your choice upon the happening of a specific circumstance of your becoming incapacitated. If the person is already incapacitated, then they cannot grant you Power of Attorney. You cannot make yourself their Power of Attorney or apply to be their Power of Attorney.
Okay, so what can I do?
There are many times where decisions must be made for an incapacitated person. These decisions could be medical, financial or fall within many categories. If the person is truly incapacitaed and there is no Power of Attorney or similar document, than an interested party can petition the court for guardianship. Giardianship can be over the person, the property or the person and property of the incapacitated person. After being made the guardian, you would have the legal ability to make the decisions pertaining to the realm over which he court gave you guardianship.
How do I prevent this from happening to me?
This is something that is best prepared for in advance. With our population living longer than ever before, there is a very real possibility of your becoming incapacitated prior to your death. In order to have your wishes followed, it is best to have an attorney draft a Power of Attorney, or similar document, that outlines your wishes and gives the power to a person that you trust. You can change or revoke a Power of Attorney while you have the capacity to do so.
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