My Parent is Incapacitated. Can I Get Power of Attorney for Their Medical Care?

Your parents raised you and took care of you when you needed them. Now, the tables have turned; they need you to care for them. This role reversal is difficult for everyone involved. In a perfect world, your parents would have created a Designation of Healthcare Surrogate and Advance Directive to plan for this situation, however, that often does not happen. If your parent is in deteriorating health and does not already have estate documents in place, what can you do now?

The principal of a Designation of Healthcare Surrogate document (the person who is naming someone else to make their healthcare decisions for them) must be mentally capable of making their own decisions to name someone as their surrogate. If someone is incapacitated and no longer capable of naming someone else to do this, then they cannot grant you authority over their medical care. In this situation, you would need to petition the Court to grant you a guardianship over their care.

To start the guardianship process, your attorney will file two petitions with the Court. The first petition is for the Court to determine that your parent is incapacitated. An examining committee, that includes a doctor, will need to meet with your parent and establish this. The initial petition could be disputed by your parent or another family member who does not believe that they are incapacitated. Any disputes can lengthen the legal process and add another layer of complexity.  If the Court finds that the parent is incapacitated, the second petition is for the Court to name you (or someone else) as the guardian over the incapacitated person. The Court could award you full, partial, permanent, or temporary guardianship over your parent. Similar to the first petition, this petition could also be disputed by another family member who wants someone else to be named as guardian. That individual could file a counter-petition with the Court and seek to be named as the guardian. In this situation, the Court may require that both parties go through mediation before it names a guardian.

Once you secure guardianship of your parent, you will be able to make healthcare decisions on their behalf, pay their bills, and manage their assets. You can have the peace of mind knowing that your parent will receive the best of care. The primary downsides to guardianships are that they can be time-consuming, involve the Court, and are costly to establish. A guardian also has ongoing fiduciary duties that require them, amongst others, to provide an annual accounting to the Court.

If you are seeking to obtain a guardianship over your parent or loved one, contact Huth, Pratt & Milhauser. We specialize in estate planning and can guide you through this process as well as ensure that you remain in compliance with the Court’s fiduciary requirements for guardians.

Huth, Pratt a& Milhauser

Huth, Pratt& Milhauser is a boutique law firm that offers a wide range of legal services in the specialty areas of wills, trusts, estates, probate, guardianship, and related matters. The range of legal services that Huth, Pratt & Milhauser provides in these specialty areas includes planning, administration and litigation. The experience and skills of our attorneys and staff, coupled with our knowledge of applicable law, enable us to provide outstanding representation to our clients.

Although we are located in South Florida, we proudly serve clients throughout the country and around the world from our Boca Raton offices. We strive to provide superior and focused counsel in a timely manner and at a competitive price.

Huth, Pratt & Milhauser

2500 North Military Trail, Suite 460

Boca Raton, Florida 33431

Phone: 561-392-1800


2500 North Military Trail, Suite 460
Boca Raton, Florida   33431
Phone: 561-392-1800

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