Coping with a spouse’s physical or cognitive decline can be incredibly stressful. The key to managing this successfully is preparation. By executing important legal documents today, you can secure the authority to act on your spouse’s behalf if capacity issues arise in the future One of the most common questions I hear from families in this position is, “How do I get Power of Attorney when my spouse cannot make decisions for themselves?”
The answer depends on your spouse’s current level of capacity as well as what documents your spouse may already have in place.
If Your Spouse Has Validly Executed Power of Attorney Documents
Powers of Attorney allow a designated agent to act in matters involving medical decisions, financial management, legal matters, or all of these responsibilities. If your spouse already has a validly executed Financial Power of Attorney and/or Healthcare Power of Attorney (also called a Healthcare Proxy) and has listed you as their agent, you are able to step in to make decisions in accordance with the terms and conditions outlined in the document. For example, some Powers of Attorney, such as a Springing Financial Power of Attorney, require the person named as the agent must first obtain the written confirmation of a physician certifying their spouse is incapacitated. Other Powers of Attorney, such as a Durable Financial Power of Attorney, allow for the individual to immediately step in and act on their spouse’s behalf. A close review of the documents will be necessary to determine which type of power has been granted in your individual case.
In addition, you will want to locate the original signed documents and provide copies to the appropriate institutions such as hospitals, doctors, banks, or financial advisors. Once the documents are on file, you can begin acting as their agent as long as the document permits you to do so. If your authority is contingent on a physician certification, you will need to obtain certification first prior to having the authority to act. A properly executed Power of Attorney remains valid after someone becomes incapacitated. This is exactly the type of situation in which Power of Attorney documents are meant to function.
If Your Spouse Does Not Have Validly Executed Power of Attorney Documents
If your spouse does not have these important documents in place, the process to gain authority to act on their behalf is much different and will require court involvement. You should first call your spouse’s hospital, doctor, or attorney if they have one to confirm that there are no documents in place giving you the ability to act on their behalf. If you determine there are no documents in place, and your spouse lacks capacity to execute these documents, you will likely need to petition the court for Guardianship of your spouse. The exact process varies greatly state by state so it is important to discuss your unique situation with a guardianship attorney licensed to practice in the state where your spouse currently resides.
In Rhode Island, you cannot sign a Power of Attorney on behalf of an incapacitated spouse. Instead, you will need to petition the probate court for guardianship. Guardianship gives you, the petitioner, the legal authority to make decisions on your spouse’s behalf when they can no longer do so on their own.
The Guardianship process generally requires filing a petition with the local probate court, providing medical evidence of incapacity, attending a hearing, and receiving a court order that outlines your authority over personal, financial, and/or medical matters. Guardianship provides protection, but it is more time-consuming, more public, and more costly than having the proper documents prepared in advance. In Rhode Island, for example, there are annual filings related to status and finances that must be filed with the probate court every year for the remainder of your spouse’s lifetime. This is why early planning can be helpful for individuals who may find themselves in a situation where their spouse is incapacitated.
Planning Ahead Makes All the Difference
If your spouse is currently incapacitated and you do not have documents already in place we can guide you through the guardianship process with compassion. Reach out to McCarthy Law today to learn more about how we can help you.
If you are reading this before a crisis arises, and your spouse is still able to sign legal documents, now is the ideal time for both of you to establish your own Powers of Attorney for both finances and healthcare. It is one of the easiest and most effective ways to protect your family.
If you have questions about Powers of Attorney, Guardianship, or how to safeguard your family through proper planning, McCarthy Law is here to help. Reach out today to schedule a free discovery call with our team.
About The Author
Attorney Whitney Anderson is a Rhode Island-based attorney who cares deeply about protecting families through thoughtful, preventative planning. With over a decade of experience serving Rhode Island families, Attorney Anderson is proud to support the local community through seminars, educational initiatives, and thoughtful legal guidance.
