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When illness strikes, or an accident occurs, a loved one may be left without the ability to think for himself or herself. The ability to think for yourself as a rational adult is called capacity (also called competence). When you lose this ability, you are considered incapacitated (or incompetent). If this has occurred to a loved one, there are certain things that you can do to protect his or her assets as well as his or her rights as a patient.

There may still be time to get help. Although your loved one may appear to you as incapacitated, he or she may still have enough mental ability to understand and sign certain documents legally. Speak to a lawyer who specializes in this area.

Being an Agent for an Incapacitated Loved One

Use Your Powers as Agent

If you are the financial agent for your loved one's affairs, you have wide-ranging powers. You should act to protect his or her rights in the following ways:

• Pay mortgage or rent payments.
• Pay utilities and phone bills (you might choose to turn off these services if no one else is living there).
• Make revolving credit, bank loan, and car payments. Collect any rent payments or other money owed your loved one.
• Review his or her stock accounts and see if there is anything that is expiring or maturing that has to be handled. Ask the account broker.
• Make sure that all income and property tax returns are being promptly filed. Talk to his or her accountant.
• Talk to any business partners that your loved one has (had) and make sure he or she is getting his or her share of company earnings.
• Pay insurance premiums. Some policies may waive payments shortly after benefits start. Ask his or her insurance broker or call the insurance company directly.
• Pay all medical bills.
• If he or she recently made major purchases, see if you can cancel and return the items, especially if the item has not been delivered.
• Notify all the credit card companies that he or she is closing their credit card accounts.

Not all banks or other parties will recognize a Durable Power of Attorney. If they do not, you may need to contact a lawyer. If you are the health care agent, notify the doctors and hospital immediately and present them with these documents. If they refuse to accept them, you may also need to talk to a lawyer.

Going to Court to Help Your Loved One

If you did not take the right steps in advance, you may be forced to turn to the courts for help. If you are seeking the right to protect the assets of your loved one, you will need to be appointed conservator. If you are seeking to be placed in charge of the physical welfare of your loved one, you will need to be appointed guardian (these terms may be slightly different in your state).

To become a guardian or conservator usually requires a lawyer, takes a long time, and is expensive. The powers that a conservator has are usually limited by the courts and may not be enough to completely protect the financial welfare of your loved one; the court also requires you to fill out detailed accounting reports.

Going to court is a drastic step and should be taken only as a last resort. When the court appoints a guardian or conservator, it becomes public knowledge. This may embarrass the family. It is also difficult to remove the court's involvement if your loved one recovers. Before taking this step, speak to a lawyer, and then consider getting a second legal opinion.