Wondering whether someone can get power of attorney without consent? We cover everything you need to know about obtaining POA without consent.
Powers of attorney are helpful estate planning tools that let individuals plan for the future and make arrangements in case they ever need assistance managing their affairs. But what happens if something unexpected happens to a loved one before they have created a power of attorney? Can you obtain power of attorney without consent?
The short answer is no, obtaining power of attorney without consent is not allowed because the principal must create a power of attorney voluntarily while they are of sound mind. Other legal arrangements enable a person to help manage someone else's affairs, but they typically require longer and more complicated processes to establish.
In this article, we’ll provide an overview of powers of attorney and address whether you can get power of attorney without consent.
First, the basics: what is a power of attorney? It is a legal document in which a person (the "principal") grants someone else (the "agent" or "attorney-in-fact") legal authorization to act on their behalf.
Powers of attorney (or POAs for short) can give the agent broad or limited powers depending on the type and purpose.
A principal can create, revoke, or make changes to a power of attorney as long as they are of sound mind. Additionally, a principal can still make their own decisions so long as they are legally competent. Creating a power of attorney document empowers the agent to make legally binding decisions on the principal’s behalf, but it does not necessarily prevent the principal from making their own decisions. (Again, so long as they are of sound mind).
There are various types of power of attorney but two distinctions matter in particular: between general and limited (or specific) powers of attorney and between durable and non-durable powers of attorney.
The first difference has to do with the scope of legal authority that the power of attorney grants.
A general power of attorney grants broad authority to the agent, allowing them to make financial and medical decisions on the principal's behalf.
Meanwhile, a specific POA grants more limited power and authorizes the agent to act in limited (or specific) contexts. Two common examples of specific powers of attorney are financial and medical powers of attorney.
In a financial POA, the attorney-in-fact is authorized to handle the principal’s financial matters, such as by paying bills, managing their bank accounts, or making other financial decisions. A medical POA (sometimes called a health care power of attorney) authorizes the agent to make medical decisions for the principal if they cannot do so themselves.
A specific power of attorney can even be as narrow as authorizing the agent to file taxes or to execute a single financial transaction on the principal’s behalf.
The other main distinction between different powers of attorney is when they remain valid.
How long is a POA good for? There are certain situations in which all POAs expire, such as when the principal dies.
But a critical distinction is whether a power of attorney remains valid when the principal becomes mentally incapacitated. A durable power of attorney remains valid if the principal becomes incapacitated, but a non-durable POA does not. (A springing POA is a type of durable power of attorney that takes effect when a particular event or condition occurs, such as the principal's incapacitation).
In some states, the default assumption is that any power of attorney created is a durable POA. But be sure to check the laws in your state, as the distinction between durable and non-durable POAs is crucial.
Here is an example of when a regular power of attorney, durable power of attorney, and springing power of attorney are valid if a principal becomes mentally incapacitated.
Creating a power of attorney is a relatively straightforward process, though the rules and form of the legal documents vary by state.
For example, some states require POA forms to be notarized, and some states require witnesses to sign the documents to verify the principal’s mental competency. (New York, for instance, requires power of attorney forms to be notarized and signed by two witnesses).
That said, template forms can be found online, and you do not necessarily need a lawyer to create a power of attorney. It may still be worthwhile to consult an estate planning attorney – a power of attorney document dictates the amount of legal control another person will have over your affairs, so it's worth getting right. An estate planning attorney can help ensure the agent's authority is clearly laid out.
Once POA documents are executed, they typically do not need to be filed with a court. That said, it often makes sense to keep the original somewhere safe to give the agent a copy in case anyone questions the agent's authority.
But again, relative to other legal processes, creating a power of attorney is pretty straightforward and does not require going to court.
No, obtaining power of attorney without consent is not an option. As long as a principal is of sound mind, they can create or revoke a power of attorney and make changes, such as changing agents under a power of attorney.
But if the principal is no longer legally competent, they cannot take any of these actions, and no one can do them on their behalf. POAs are voluntary arrangements and must be created freely by the principal.
Instead, suppose a loved one lacks the mental capacity to manage their own affairs and thus cannot create a power of attorney. In that case, you will have to ask a court to create a guardianship or conservatorship to gain legal responsibility for their affairs. These arrangements are similar in the broad sense that they allow someone (the guardian or the conservator, respectively) to legally act on someone else's behalf and manage that person's affairs. But there are numerous differences, including that they are not voluntary processes and require requesting a court to create the legal relationship.
Thus, you would need to petition the court and request to be appointed your loved one’s guardian or conservator. But the process can be slow and more expensive than creating a power of attorney.
Additionally, the judge could appoint someone else to act as guardian or conservator. Typically, judges will select a family member who makes the request and can fulfill the requisite duties. That said, unlike a power of attorney in which the principal chooses who they want to be their agent, the judge ultimately decides who will fulfill that role in a guardianship or conservatorship.
(For more information on these topics, check out our articles on the differences between conservatorship vs power of attorney and between guardianship vs power of attorney).
No, just as someone cannot get power of attorney without consent, you cannot change a power of attorney without the principal's consent.
Remember that a principal can always override or revoke a power of attorney document while they are mentally competent. And they may also change a POA, including by changing the agent named in the legal document.
But whether it is creating, revoking, or changing a power of attorney document, the principal must do so of their own free will while they are of sound mind. Someone else, including the agent, cannot change a power of attorney document without their consent.
So, can someone get power of attorney without consent? No, powers of attorney must be created voluntarily while the principal is legally competent.
Once a person lacks the mental capacity to create a power of attorney, they cannot create a new POA document, and no one can do so on their behalf. Instead, if you want to help a loved one manage their affairs after an event or condition impairs their mental capacity, you will need to petition a court to create a guardianship or conservatorship.
These other arrangements are more expensive and time-consuming to create, which is why it is best to plan ahead and get power of attorney documents in place along with your other estate planning documents before they are needed.
If you have questions about how to plan for your future or that of a loved one, consider speaking with an estate planning or elder law attorney today.