Should I Get Power of Attorney Before My Loved One Needs Care?

7 min read |

June 27, 2026

Yes. And the window for doing it correctly is narrower than most families realize.

Power of attorney is one of those things most families mean to get around to. It seems important. But it does not feel urgent until the moment it suddenly, terribly does.

By the time a family is navigating a medical crisis, a cognitive decline diagnosis, or an emergency hospital admission, the window for setting up power of attorney may have already closed. That is the moment families learn, often through a difficult and expensive experience, that these documents can only be created while a person has legal capacity, not after they have lost it.

The Two Documents That Matter Most

Durable Power of Attorney for Finances

A durable power of attorney for finances gives a trusted person, called the agent, the legal authority to manage financial matters on behalf of your loved one if they become unable to do so themselves. This includes paying bills, managing bank accounts and investments, handling real estate transactions, and making other financial decisions. The word “durable” is essential: a standard power of attorney becomes void when the person who granted it loses legal capacity. A durable power of attorney remains valid precisely when that capacity is lost.

Healthcare Power of Attorney (HCPOA)

A healthcare power of attorney designates a trusted person to make medical decisions when your loved one cannot make them independently. This person, sometimes called a healthcare proxy or agent, can communicate with physicians, consent to or decline treatments, and make decisions about care settings. Without this document in place, family members may find it difficult to participate meaningfully in care decisions, even when they are the people most closely involved in their loved one’s daily life.

Why Timing Is Everything

Both documents require that the person signing them have legal capacity at the time of signing. Legal capacity means the ability to understand what the document is, what authority is being granted, and to whom, and to make a voluntary, informed decision to sign.

Legal capacity is not the same as being elderly, physically limited, or even in some stages of cognitive decline. Many people retain legal capacity well into significant physical illness. But dementia and progressive cognitive conditions can compromise it, and capacity is assessed at the moment of signing, not at some earlier point when it was clearly intact.

Once a loved one no longer has capacity to sign a power of attorney, that document cannot be created. The legal path forward from that point is guardianship or conservatorship through the courts.

If You Wait Too Long: Guardianship and Court Oversight

Guardianship and conservatorship are the legal alternatives when no power of attorney is in place, and a person can no longer make decisions for themselves. This is a court process, not a paperwork process. It requires filing a legal petition, medical evaluations, a judicial hearing, and ongoing court supervision. Attorney fees and court costs can be substantial, and this process frequently takes weeks or months.

During that time, families may be unable to access accounts, pay bills, or make timely care decisions, even in urgent situations.

This is entirely avoidable. A properly executed durable power of attorney and healthcare power of attorney prevent court involvement entirely.

What Happens Without These Documents

Without legal authority in place, families run into walls. Financial institutions cannot allow access to individually-owned accounts. Healthcare providers are limited in what they can share with family members who are not formally designated. When siblings disagree about who should be making decisions, there is no legal framework to resolve it.

Families who have navigated a care transition without these documents consistently describe the experience the same way: every step was harder than it needed to be, and all of it could have been prevented.

Getting These Documents in Place

An estate planning or elder law attorney can prepare a durable power of attorney, healthcare power of attorney, advance directive, and HIPAA authorization in a single appointment. The attorney’s fee for this is modest relative to the financial and emotional cost of not having these documents when they are needed.

If there is any question about whether your loved one currently has legal capacity, an attorney experienced in elder law can help assess that before proceeding. The practical advice is this: call an attorney. Do it this week.

Frequently Asked Questions

Does a power of attorney give someone control over my loved one right now?

Not necessarily. A durable power of attorney for finances can be drafted as a “springing” POA, which only takes effect when a physician certifies that the person has lost capacity, or as an immediately effective POA, which is sometimes simpler to use in a crisis. An elder law attorney can advise on which structure is appropriate for your situation.

Can my family member sign a power of attorney if they have a dementia diagnosis?

A diagnosis of dementia does not automatically mean a person has lost legal capacity. Capacity is assessed at the time of signing based on whether the person understands what they are signing, what authority they are granting, and to whom. Many people in early stages of cognitive decline retain legal capacity; an elder law attorney can help evaluate this and, if needed, involve a physician in the assessment.

What is the difference between a healthcare power of attorney and an advance directive?

A healthcare power of attorney designates a specific person to make medical decisions on your loved one’s behalf when they cannot speak for themselves. An advance directive, sometimes called a living will, documents your loved one’s own preferences about specific treatments and interventions. These two documents work together: the advance directive expresses what your loved one wants; the healthcare power of attorney designates who speaks for them when they cannot.

What happens if my loved one has already lost capacity and no power of attorney is in place?

If a person no longer has legal capacity and no power of attorney exists, the family must petition the court for guardianship or conservatorship. This formal legal process involves medical evaluations, court hearings, and ongoing court oversight, and is both costly and time-consuming. If you are in this situation, consult with an elder law attorney as soon as possible.

Does a power of attorney expire?

A durable power of attorney remains in effect until the person who created it revokes it, a court invalidates it, or the person passes away. At death, the power of attorney ends, and authority passes to the estate’s executor under the will or applicable state law. A non-durable power of attorney expires when the person loses capacity, which is precisely why the “durable” designation matters for senior care planning.

Sources

National Academy of Elder Law Attorneys (NAELA). Durable Powers of Attorney. https://www.naela.org/Web/Web/Resources_Tab/Consumer_Resources/Law_Topics/DPOA.aspx
American Bar Association Commission on Law and Aging. Power of Attorney. Updated 2023. https://www.americanbar.org/groups/law_aging
CaringInfo. National Alliance for Care at Home. Advance Directives by State. Updated 2025. https://www.caringinfo.org/planning/advance-directives
National Institute on Aging (NIA). Advance Care Planning: Advance Directives for Health Care. Updated 2025. https://www.nia.nih.gov/health/advance-care-planning/advance-care-planning-advance-directives-health-care

Disclaimer: This CareCircle Insights blog does not constitute medical, legal, or financial advice and is provided for general educational purposes only. Please consult a qualified professional about your specific circumstances.