Can an Incapacitated Person Sign a Power of Attorney? (Short Answer: No.)
At Kaminski Law Group, one of the most common questions we receive is:
“Can I get a power of attorney for my loved one who is already incapacitated?”
It’s an important—and often urgent—question, especially when families are trying to help a parent or spouse manage financial or medical decisions. But unfortunately, the law is clear on this point:
A person must have mental capacity at the time they sign a power of attorney. If they are already incapacitated, they cannot validly execute the document.
Why Capacity Matters
A power of attorney (POA) is a legal document that gives someone else authority to act on your behalf. Because this authority can be broad—ranging from managing finances to making health care decisions—the person signing the POA (called the principal) must fully understand:
- What the power of attorney does
- What powers they are granting
- The legal and practical consequences of doing so
In short, the person must have contractual capacity—the same mental ability required to enter into a contract. This is supported by California Probate Code § 4120 and reinforced by legal commentary in § 5B.52:
“The capacity to execute a power of attorney is co-extensive with the power to enter into a contract.”
What the Courts Say
In United States v. Manny, 645 F.2d 163, the court found that a power of attorney signed by an incompetent person is not automatically void—but it is voidable, meaning it can be legally challenged and potentially invalidated.
Similarly, in In re Myers, 350 B.R. 760, the court held that a POA signed by a person suffering from dementia was invalid because the individual lacked the mental capacity to understand the document at the time of signing.
These cases reinforce a key legal principle: if someone does not fully understand the nature and effect of the document they are signing, they cannot create a valid power of attorney.
What If There’s Already a Power of Attorney in Place?
This is where things shift.
If your loved one already has a valid power of attorney and is now looking to create a trust, we may be able to assist—depending on the language and authority granted in the existing POA.
Some powers of attorney grant the agent authority to create or fund a trust on the principal’s behalf, but not all do. It’s important to review the document carefully and evaluate whether the specific powers align with the proposed action. This is something we routinely help clients assess.
Takeaway
If your loved one is already incapacitated, it’s too late to sign a new power of attorney—and any document executed in that state would likely be challenged or deemed unenforceable.
However, if a valid power of attorney was executed before incapacity, there may still be options to move forward—particularly with trust planning.
If you’re unsure what applies to your situation, we’re here to help. Reach out for a consultation, and we’ll walk you through your options with clarity and care.
Kaminski Law Group, APC
Compassionate planning. Trusted results.
📞(916) 540-7618 | 🌐 www.californiatrusts.law
