Not infrequently I learn of parents who neglect to obtain guardianship of their disabled children after the child becomes an adult, typically because they are unaware of the fact that they have lost all legal rights to make decisions for their child. A recent court decision in Kentucky (cited in the NAELA eBulletin) involves a case where the parents attempted to execute a Power of Attorney on behalf of their child, to no avail.
The lesson is, if your child is not competent to make decisions concerning their own best interests then a guardian should most likely be appointed (whether that guardian is a family member or someone else is a different issue).
Parents of Disabled Adult Child Could Not Appoint Attorney-in-Fact for Adult Child (Ky. App.)
Deborah Rowe was mentally incompetent from birth, and her parents cared and provided for Deborah well into her adulthood. They never obtained an order of guardianship. In 2001, the parents executed a document entitled “Power of Attorney,” by which they purported to appoint Nancy Meadows as Deborah’s attorney-in-fact. Nancy began overseeing Deborah’s affairs and decided in 2007 that the best place for Deborah to live would be a nursing home. Nancy signed Deborah’s admission papers, including an arbitration agreement, as “PoA.” After Deborah died, her brothers, as co-administrators of her estate, brought a wrongful death action against the nursing home.
The defendant sought dismissal due to the arbitration agreement. The trial court denied the motion asserting that Nancy lacked authority to enter into the agreement and also denied the argument that the estate was estopped from denying the validity of the agreement. Defendant identified no law which permitted parents, on the basis of custody alone, to enter into contracts on behalf of a child, particularly one who was an incompetent adult. Additionally, Nancy did not have authority because the “Power of Attorney” executed by the parents did not make her attorney-in-fact for Deborah. Deborah’s parents could no more name Nancy attorney-in-fact for Deborah than they could name Nancy attorney-in-fact for each other. There was no apparent authority.
GGNSC Stanford, LLC v. Rowe, 2012 WL 4208924 (September 21, 2012)