Is there a form the doctor can sign verifying my father is not of sound mind?
In order to create a legally effective power of
attorney, the individual for whom the power of attorney is created (or
principal) must be mentally competent. The principal needs to know and
understand what he is doing. A person who is mentally incapacitated
cannot meet these requirements. The principal should make sure that he
understands the details built into the power of attorney as well as the
potential for legal or financial difficulties it may present.
Unless a power of attorney specifically says otherwise, an
agent's authority ends if the principal becomes mentally incapacitated.
A durable power of attorney, on the other hand, states explicitly that
it is to remain in effect and not be limited by any future mental
incapacity of the principal, and the principal's agent can continue to
conduct business for the principal if the principal becomes
incapacitated. The principal must list the specific powers under the
durable power of attorney that are given to the agent and when those
powers are to take effect. Durable powers of attorney are intended to
address cases where the principal intends the agent to have authority
only if the principal becomes incapacitated or where the principal
intends for the power of attorney to take effect immediately and to
remain in effect regardless of the principal's future disability. The
agent and/or a physician may determine whether a principal is capable of
making his or her own decisions according to state laws that provide
specific procedures for making this determination. Alternatively, a
principal can include in his or her durable power of attorney other
effective dates or other factors for determining whether he or she can
make his or her own decisions. Like all powers of attorney, a durable
power of attorney ends or ceases to carry authority upon the death of
There are two general types of durable powers of attorney: a
durable power of attorney for finances, and a durable power of attorney
for health care. Depending on the terms of the document, the durable
power of attorney for finances allows the agent to serve the interests
of the principal in financial matters before, during, or after the agent
becomes incapacitated. The durable power of attorney for health care
authorizes the agent to make medical decisions for the principal if the
principal cannot otherwise make those decisions. An agent's authority
over the principal's financial and health care decisions can be included
in the same power of attorney; however, some durable powers of attorney
for finances do not give the agent the legal authority to make medical
decisions for the principal.
The following are California statutes:
Section 4030 Probate Code
"Springing power of attorney" means a power of attorney that by
its terms becomes effective at a specified future time or on the
occurrence of a specified future event or contingency, including, but
not limited to, the subsequent incapacity of the principal. A springing
power of attorney may be a durable power of attorney or a nondurable
power of attorney.
(a) In a springing power of attorney, the principal may
designate one or more persons who, by a written declaration under
penalty of perjury, have the power to determine conclusively that the
specified event or contingency has occurred. The principal may designate
the attorney-in-fact or another person to perform this function, either
alone or jointly with other persons.
(b) A springing power of attorney containing the designation
described in subdivision (a) becomes effective when the person or
persons designated in the power of attorney execute a written
declaration under penalty of perjury that the specified event or
contingency has occurred, and any person may act in reliance on the
written declaration without liability to the principal or to any other
person, regardless of whether the specified event or contingency has
(c) This section applies to a power of attorney whether executed
before, on, or after January 1, 1991, if the power of attorney contains
the designation described in subdivision (a).
(d) This section does not provide the exclusive method by which
a power of attorney may be limited to take effect on the occurrence of a
specified event or contingency.
We do not currently offer a form for use as a declaration under
penalty of perjury that a specified event or contingency has occurred to
make a power of attorney become effective and are not aware of an
existing statutory or official state form for this purpose. We are,
however, looking into drafting such a form. You may either check back on
our website in a few days to see if this type of form is available, or
we may notify you if we are able to draft such a form.