Many families assume that if something happens, a spouse or adult child can automatically step in and make decisions.
Unfortunately, that’s not always the case.
If your loved one does not have a valid power of attorney in place and loses the ability to make decisions, you may find yourself in a difficult and unexpected situation.
👉🏻 If you’re earlier in the process, start here with the free guide that explains what to do legally after a dementia diagnosis.
The Common Misconception
We hear this all the time:
“I’m the spouse, so I can make decisions.”
“I’m their child. I’ll handle it.”
In reality, without proper legal documents, no one automatically has full authority to make financial or medical decisions on behalf of another adult.
Even close family members can face serious limitations.
What Happens Without a Power of Attorney
If your loved one becomes incapacitated without a power of attorney:
- Banks may refuse access to accounts
- Healthcare providers may limit communication
- Financial decisions may be delayed or blocked
- Family disagreements may escalate
This can create stress at a time when your focus should be on care, not legal barriers.
Medical Decisions: Who Is Allowed to Decide?
Some states have default “surrogate decision-maker” laws that allow certain family members to make medical decisions.
However:
- These laws vary by state
- They may not cover all situations
- They can still lead to confusion or conflict
Even when allowed, families often face delays or disagreements, especially in complex medical situations.
This is one reason advance care planning is so important. Putting healthcare wishes and decision-making authority in place before a crisis can give families much clearer guidance when difficult medical decisions arise.
Financial Decisions: A Bigger Challenge
Financial matters are typically where families run into the most roadblocks.
Without a durable power of attorney:
- No one can access bank accounts
- Bills may go unpaid
- Assets may be left unmanaged
Financial institutions are legally required to protect account holders, which means they often cannot grant access without proper documentation.
When Guardianship or Conservatorship Becomes Necessary
If no power of attorney exists, families may need to go to court to request legal authority.
This process is known as:
- Guardianship (for medical and personal decisions)
- Conservatorship (for financial decisions)
While sometimes necessary, this process can be:
- Time-consuming
- Expensive
- Public
- Emotionally difficult
The court, not your loved one, decides who will be appointed to make decisions.
👉🏻 This is exactly why many families try to avoid guardianship in dementia through early planning.
Why Planning Ahead Makes All the Difference
A properly drafted power of attorney allows your loved one to:
- Choose who they trust
- Define what authority that person has
- Avoid court involvement
- Ensure decisions reflect their wishes
It’s one of the most important legal tools for people who have been diagnosed with dementia and the family members who love and care for them.
But timing matters. A person with dementia may still be able to create a power of attorney if they have the legal capacity to understand what they are signing. Learn more about when it may be too late to create a power of attorney after a dementia diagnosis.
A Better Path Forward
At Lifescape Elder Care Law & Estate Planning, we help families avoid these situations whenever possible.
Our process focuses on:
- Creating clear legal authority before it’s needed
- Coordinating legal planning with care needs
- Supporting families through transitions if capacity has already been lost
For many families, a dementia diagnosis also raises questions about future care and how to pay for it. Understanding what long-term care may cost in Kansas City can help families begin planning before care needs become urgent.
Frequently Asked Questions
Who makes decisions if there is no power of attorney?
If there is no power of attorney and a person becomes incapacitated, no one automatically has full legal authority to make financial or medical decisions. Families may need to rely on limited state laws for medical decisions or pursue guardianship or conservatorship through the court.
Can a spouse make decisions without a power of attorney?
Not always. While spouses may have some limited rights for medical decisions under state law, they typically do not have automatic authority to manage finances or make all healthcare decisions without a valid power of attorney.
Can an adult child make decisions for a parent without legal documents?
No. Adult children do not automatically have legal authority to act on behalf of a parent. Without proper documents like a power of attorney, they may need court approval through guardianship or conservatorship.
What happens if someone with dementia has no power of attorney?
If a person with dementia loses capacity without a power of attorney, families often face delays in decision-making, blocked access to financial accounts, and limited communication with healthcare providers. In many cases, court involvement becomes necessary.
Who can make medical decisions without a power of attorney?
Some states allow certain family members to act as “surrogate decision-makers” for healthcare decisions. However, these laws vary, may be limited in scope, and can still lead to delays or disputes among family members.
Why can’t families access bank accounts without a power of attorney?
Financial institutions are legally required to protect account holders. Without a valid durable power of attorney, banks typically cannot allow anyone—even close family members—to access accounts or manage finances.
What is the difference between guardianship and power of attorney?
A power of attorney is created in advance and allows a person to choose who will make decisions for them. Guardianship is a court process used after incapacity, where a judge appoints someone to make decisions, often with ongoing court supervision.
When is guardianship or conservatorship required?
Guardianship or conservatorship is usually required when someone has lost decision-making capacity, and no legal documents are in place. It is often the only way to obtain legal authority to act on their behalf.
Is guardianship expensive and time-consuming?
Yes. Guardianship and conservatorship proceedings can be costly, take time to complete, and involve court oversight. They can also create emotional stress for families during an already difficult time.
How can families avoid guardianship proceedings?
Families can avoid guardianship by putting a durable power of attorney, healthcare power of attorney, and other legal documents in place early, before incapacity occurs. This allows trusted individuals to step in without court involvement.
👉🏻 Putting the right documents in place early can prevent this situation. Here’s a guide to the key legal documents after a dementia diagnosis.
Take Action Before a Crisis
If your loved one does not have a power of attorney in place, now is the time to act.
Waiting until a crisis occurs can limit your options and make an already difficult situation even harder.
With the right planning, you can ensure that when decisions need to be made, the right person is ready and legally able to step in.
Lifescape can help you put that kind of plan together.
Schedule your confidential consultation today.
📞 Call 816.291.4143
💻 Or book online
About the Author
Glen Smith, Elder Law Attorney
Glen Smith is an elder law attorney and the founder of Lifescape Elder Care Law & Estate Planning in Kansas City. His practice focuses on elder law, estate planning, Life Care Planning, and Medicaid planning. He is also accredited by the Department of Veterans Affairs, allowing him to assist veterans and their families with VA benefits planning. Glen works closely with families to navigate the legal, financial, and care decisions that come with aging, long-term illness, and disability.
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