If you can't speak for yourself: incapacity, explained
The short answer
If you can't make decisions and have signed nothing, the law picks for you. Doctors turn to a statutory list of relatives, and for money a court may appoint a guardian or conservator. Signing a durable financial power of attorney, a medical power of attorney and a health care directive lets you choose instead.
Most of us picture planning as something for after we're gone. But there is a stretch that can come first: a fall, a stroke, a long surgery, a slow change in memory. For a while, you may be here and unable to say what you want.
This page walks through that stretch calmly, covering what "incapacity" means in law and who steps in when nothing is signed. It explains guardianship and powers of attorney. And it covers the small things (a wallet card, a list of wishes) that make hard days easier.
Rules differ by state. We use Washington State as the worked example throughout, with the statute cited. Each section links to a longer post if you want the detail.
What does "incapacity" mean in law?
Incapacity is not a diagnosis. It is a legal idea about whether you can make a particular decision right now.
Washington's power of attorney law defines incapacity as being unable to manage your property, personal or health care affairs. The cause must be an impairment in the ability to "receive and evaluate information or make or communicate decisions" (RCW 11.125.020). The same definition also covers someone who is missing or stuck outside the country.
For medical decisions, Washington starts from the other direction. An adult is presumed to have capacity. That changes only if a health care provider reasonably finds otherwise for that decision and writes down why in the medical record (RCW 7.70.065).
So capacity can come and go. Someone can be unable to decide on Tuesday, after anesthesia, and fully able on Friday.
Who decides that you can no longer decide?
It depends on the decision. A doctor decides whether you can consent to a treatment today. Your power of attorney can say who confirms that it has started.
If it doesn't say, Washington lets a physician or licensed psychologist make that finding in writing. They must have examined you and can't be related to you or your agent (RCW 11.125.090).
Guardianship is different again. There, only a judge can decide, after a hearing. Our post on who decides that you can no longer decide sets out each path side by side.
Who decides for you if nothing is signed?
This is the part most people never see until they're in it. Two separate systems take over: one for medical decisions, one for money and property.
Medical decisions: the statutory list
When a patient can't consent, Washington law gives doctors a list of people to ask, in strict order (RCW 7.70.065):
- A court-appointed guardian, if there is one.
- The person you named in a durable power of attorney that covers health care decisions.
- Your spouse or state registered domestic partner.
- Your adult children.
- Your parents.
- Your adult brothers and sisters.
- Adult grandchildren who are familiar with you.
- Adult nieces and nephews who are familiar with you.
- Adult aunts and uncles who are familiar with you.
- A close friend who meets set conditions and signs a sworn declaration.
Notice where your own choice sits: second, right after a judge. Everything below that line is the law guessing.
The friend at the bottom of the list has hoops to clear. Under the same statute, they must sign a declaration under penalty of perjury, and it lasts up to six months. The provider may rely on it but is not required to.
So a friend you trust completely may still find the door only half open. Other states use different lists. Our post on medical decisions without a power of attorney goes further.
The next-of-kin order post explains how the list plays out in real families.
Money and property: the gap
There is no similar list for your bank account. A hospital can turn to your sister for consent to surgery. Nothing in that statute lets her pay your mortgage.
Without a financial power of attorney, the usual route is court. In Washington that means a conservatorship, which we cover below.
Guardianship versus power of attorney
These two are often confused, and the difference matters more than anything else on this page. A power of attorney is something you sign while you can. Guardianship is something a court imposes when you can't.
What a power of attorney is
A power of attorney is a signed document that names someone (your agent) to act for you. Two kinds matter here. A financial power of attorney covers money and property, and a medical power of attorney covers health care decisions.
In Washington, a power of attorney must be signed and dated. It must be notarized or signed before two qualified witnesses who aren't related to you or your agent (RCW 11.125.050).
It must also contain words showing it should keep working if you become incapacitated. That is what "durable" means (RCW 11.125.040). Without that language, it ends exactly when you need it.
Every power of attorney ends at death (RCW 11.125.100). After that, your will and your executor take over.
What guardianship is
Washington's law here is the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, chapter 11.130 RCW. A guardian makes personal decisions, such as care and where you live. A conservator handles property and financial affairs (RCW 11.130.010).
The bar is deliberately high. A Washington court may appoint a guardian for an adult only after notice and a hearing, on clear and convincing evidence (RCW 11.130.265). The evidence must show three things:
- The person can't meet essential needs for health, safety or self-care, even with support.
- A guardian is needed to prevent significant risk of harm.
- A less restrictive option won't meet those needs.
The same statute says age, eccentricity, poverty or a medical diagnosis is not enough by itself. And the law names a power of attorney for health care or finances as one of those less restrictive options (RCW 11.130.010).
The court must also order a professional evaluation of the person (RCW 11.130.290). All of this protects people, and it takes time.
Side by side
| Item | Power of attorney | Guardianship or conservatorship |
|---|---|---|
| Who chooses the person | You do | A judge, using a priority list |
| When it's set up | While you can still sign | After you can't decide |
| Court involved | No | Yes: petition, notice, hearing |
| Public | Private document | The proceeding is a public record in Washington (RCW 11.130.300) |
| Can be changed | By you, any time you have capacity | By the court |
One more detail is reassuring. In Washington a guardian cannot revoke your power of attorney. Your health care agent's decisions take precedence over the guardian's unless a court orders otherwise (RCW 11.130.335).
If a court does have to choose a guardian, it starts from a priority list. Someone you nominated, including in a power of attorney, ranks ahead of a spouse or relatives (RCW 11.130.305). Even in the worst case, your writing still counts.
The posts in this guide, one by one
Here is every post in this part of the library, with a line on what each one answers.
Guardianship vs power of attorney
Guardianship vs power of attorney is the full version of the comparison above. It covers what each can and can't do, and what a guardian reports to the court. It also explains why most families would rather never need one.
Conservatorship vs power of attorney
Conservatorship vs power of attorney is about money. It explains when a court steps in to manage property, and what a financial power of attorney does instead.
How to avoid guardianship
How to avoid guardianship is the practical checklist. It covers which documents to sign and how to name backups so a role never sits empty. It also shows how to nominate your own guardian in writing, just in case.
Dementia and power of attorney
Dementia and power of attorney: when it's too late to sign answers the question families ask most often. A diagnosis does not automatically end the ability to sign. Capacity is judged for the decision at hand, and the post explains why sooner is kinder.
Who decides capacity
Who decides that you can no longer decide? walks through three roles. There's the doctor's, the one your own power of attorney can assign, and the court's in guardianship.
Power of attorney for an elderly parent
Power of attorney for an elderly parent is written for the adult daughter or son. It covers how to raise it gently and what your parent has to do (you can't sign it for them). It also covers what to do if it's already too late.
Long-term care planning
Long-term care planning treats care as a plan, not a product. Where would you want to live, and who checks in? Who pays the bills, and who can authorize a move if it comes to that?
Aging in place
Aging in place: the plan behind staying home covers what has to be true for staying home to work. You need a person with authority over money and someone who can let in a contractor. You also need a written answer to "when would I want to move?"
Your ICE card
Your ICE card explains what to carry in your wallet. The goal is for a hospital to call the right person first, not the nearest relative on a list.
Emergency contacts without family
What to put in your emergency contacts is for anyone who would rather list a friend, a neighbor or a professional. It explains how to make that choice stick.
End-of-life planning checklist
End-of-life planning checklist puts everything in one list: the documents, the conversations, the wishes, and where each is kept.
End-of-life wishes
End-of-life wishes: how to write them so they're followed is about turning values into instructions. A doctor and your agent should be able to act on every line.
Hospice and your wishes
Hospice and your wishes: who speaks for you at the end explains who makes decisions in hospice when the patient can't. It also covers how your written wishes travel with you.
Emergency cards: the first five minutes
When something happens, the first question at a hospital is simple: who do we call? The answer is whatever is in your wallet and your phone.
A small card behind your driver's license can carry a lot:
- The name and number of your medical power of attorney, and a backup.
- That you have a health care directive, and where a copy is.
- Your main doctor and any serious conditions or allergies.
- Who has a key to your house, and that there is a dog waiting.
The point is to put your choice in front of the hospital before the statutory list ever comes up. Our posts on the in case of emergency card and on choosing emergency contacts go through it line by line.
Here is a typical case, a composite. Margaret, 71, slips on ice and can't talk for a few hours. Her wallet card lists her friend Joan as her medical power of attorney.
Joan is called within the hour and brings a copy of the document. She also tells the nurse that Margaret's beagle needs letting out.
End-of-life wishes: saying it in writing
A medical power of attorney says who decides. A health care directive (often called a living will) says what you'd want. Most people do best with both, and our post on health care power of attorney vs living will explains why.
Washington's Natural Death Act lets any adult sign a directive about life-sustaining treatment (RCW 70.122.030). It applies in a terminal condition or a permanent unconscious condition. The directive must be notarized or signed before two witnesses.
Those witnesses can't be relatives or people who would inherit from you. They also can't be your attending physician, or an employee of that physician or of the health facility where you're a patient.
There is also a medical order called POLST, Portable Orders for Life-Sustaining Treatment. The Washington State Department of Health describes it as a portable physician order form (Washington State Department of Health). It summarizes your wishes about resuscitation, other medical interventions, antibiotics and artificial feeding.
Our post on POLST vs advance directive vs DNR sorts out which is which.
Legal forms only go so far, though. They rarely say that you'd want music on, or your sister in the room, or that you'd rather be at home. That's what a care plan is for.
We wrote a whole guide to the care plan. It includes how to put your treatment preferences in plain language.
A short checklist
| If you want this | Sign or write this | Washington reference |
|---|---|---|
| Someone you choose to handle money if you can't | Durable financial power of attorney | RCW 11.125.040, 11.125.050 |
| Someone you choose for medical decisions | Medical power of attorney | RCW 7.70.065 |
| Your choices about life support followed | Health care directive | RCW 70.122.030 |
| A say even if a court is involved | A guardian nomination in your power of attorney | RCW 11.130.305 |
| The hospital to call the right person | A wallet card and phone emergency contacts | |
| Everything only you know, followed | A care plan |
What if the people you'd name aren't nearby?
The default lists assume a spouse or grown children close at hand. Many lives don't look like that, and that's fine.
You can name a friend. You can also name a professional fiduciary, meaning someone legally required to act in your interest and follow what you wrote.
In Washington, a financial institution authorized to exercise trust powers can be appointed guardian or conservator without separate certification (RCW 11.130.090). A trust company can also be named as an agent in a power of attorney.
This is the problem Kinly was built around. A member's four documents can name Trella Trust Company, a Washington State chartered trust company. It can serve first, or as backup to a sister, brother or friend.
The care plan sits with a team that answers any hour. You decide; they carry it out. How it works has the detail, and our guide to choosing professional help compares the options honestly.
Common questions
What happens if I become incapacitated without a power of attorney?
For medical decisions, doctors turn to a list set by state law. In Washington it runs from a guardian through spouse, children, parents and siblings, then other relatives and a qualifying close friend. For money, there's usually no shortcut, and a court may need to appoint a conservator.
Can my friend make medical decisions for me without paperwork?
In Washington, sometimes, but only as the last class on the list. The friend must sign a sworn declaration, and the provider isn't required to rely on it. Naming the friend as your medical power of attorney moves them up to second, right after a court-appointed guardian.
Is guardianship the same as power of attorney?
No. You choose your agent in a power of attorney while you can still sign, with no court involved. A judge appoints a guardian after a hearing, and in Washington must first consider less restrictive options like a power of attorney.
Can someone with dementia still sign a power of attorney?
It may be possible, especially early on. A diagnosis does not settle it by itself; the question is whether the person can understand the decision at that moment. Our post on dementia and power of attorney explains how to handle it and why sooner is easier.
Does a power of attorney still work after death?
No. Every power of attorney ends when the person dies. From then on, the will, the executor and any trustee of a living trust take over, and probate may follow.
Sources
- RCW 7.70.065: Informed consent, persons authorized to provide for patients who do not have capacity
- RCW 11.125.020: Power of attorney definitions, including incapacity and durable
- RCW 11.125.040: Power of attorney termination on incapacity unless durable
- RCW 11.125.050: Power of attorney signing requirements
- RCW 11.125.090: When a power of attorney is effective
- RCW 11.125.100: Power of attorney termination
- Chapter 11.130 RCW: Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act
- RCW 11.130.010: Definitions (guardian, conservator, less restrictive alternative)
- RCW 11.130.090: Qualifications of guardians and conservators
- RCW 11.130.265: Basis for appointment of guardian for adult
- RCW 11.130.290: Professional evaluation
- RCW 11.130.300: Confidentiality of records
- RCW 11.130.305: Who may be guardian for adult, order of priority
- RCW 11.130.335: Special limitations on guardian's power
- RCW 70.122.030: Natural Death Act, directive to withhold or withdraw life-sustaining treatment
- Washington State Department of Health: Portable Orders for Life Sustaining Treatment (POLST)
This page is general information, not legal or financial advice. Laws vary by state.