Ask the Lawyer

Jonathan E. Richardson

Question: I believe my mother is losing it. She thinks she is a baby. What can I do to help her with her business affairs? Can I get a power of attorney? I don’t believe she can even write her name.

Answer: You cannot get a new power of attorney at this time because your mother is likely mentally incompetent. A power of attorney is not an option for a person in your mother’s condition, generally. At the point where your mother thinks she is a baby and cannot sign her name, she loses the ability to validly and legally execute a power of attorney because she is not of sound mind. A ‘power of attorney’ works by vesting specific authority in another person certain power you personally have—via a written document. Financial powers of attorney can be nondurable general powers of attorney, requiring the grantor to be around and fully capacitated for the power of attorney to be effective; the durable power of attorney, which contains certain terminology requesting the effectiveness of the power of attorney beyond the incapacity of the grantor; and the limited power of attorney which is limited to a specific time or task pursuant its terms. In Tennessee, the person conveying a power of attorney to another, the grantor, must be of sound mind or otherwise mentally competent in order to execute said power of attorney. Thus, it sounds like a power of attorney is not going to work for you. You probably need a conservatorship for your mother.

A conservatorship is especially useful if you intend to take care of her personal business, including paying bills, making medical decisions, and disposing of any property. You would need a conservatorship to have access to necessary banking, retirement, or insurance accounts, all essential to your mother’s business affairs. You probably need to talk to your attorney about what you can do to qualify for a conservatorship, and what you must do to maintain said conservatorship.

The article above contains some information about financial powers of attorney and conservatorships, and is for informational purposes only. This article is not legal advice. You should consult a lawyer for legal advice and should not rely on this article for the same.

For comments, contact Jonathan E. Richardson, attorney, at 615-891-7811 or by e-mail at Jrichardson@Jrichlaw.com

Until next time, we wish you well.