Allow advance power of attorney for mentally incapacitated individuals

Clearly define the authority of the PoA holder, which should get activated upon confirmation of mental incapacitation by an independent medical panel

As I approach the evening of my life, one troubling image often keeps me awake. In August 2016, my father suffered a massive stroke. It left him bedridden and entirely dependent on others. For someone fiercely independent, self-made, disciplined —and who had risen to become the chief financial officer (CFO) of a large, listed company — losing autonomy had always been his greatest fear.

 

He had witnessed a similar fate befall his father, my grandfather, who spent his final years mentally and physically incapacitated after a stroke. Determined not to leave anything to chance, my father prepared meticulously: He prepared a registered will, nominated family members for his accounts, and maintained detailed records of his assets. Ironically, he overlooked the one scenario he feared most — mental incapacitation. 

When the stroke struck, we found all his accounts were solely in his name, leaving us unable to access funds even for his care. Fortunately, he retained enough awareness to eventually authorise my sister and me to manage his affairs. But what if he had slipped into a coma or lost all mental capacity? 

In researching solutions, I encountered numerous families grappling with similar challenges. Without clear legal guidelines, families of incapacitated persons (ICPs) must endure prolonged and costly court processes just to access their loved ones’ finances. Courts usually appoint a close relative as guardian, but the process is tiring, complicated, and involves strict monitoring to avoid misuse. 

Surprisingly, India still lacks clear laws for appointing a guardian for mentally incapacitated adults. Regulators like the Securities and Exchange Board of India (Sebi) and the Reserve Bank of India (RBI) have rules to help physically incapacitated individuals, but these solutions do not extend to mental incapacitation. Internationally, the issue is managed through “durable” or “lasting” power of attorney (PoA), which remains valid even if the person granting it loses mental capacity. In India, a regular PoA becomes invalid if the grantor becomes mentally incapacitated — because legally, an agent cannot perform actions the principal cannot. 

There is an urgent need for legislation that allows individuals to plan for such scenarios. Such a law should:

 

One, allow individuals to appoint a PoA holder in advance; two, define the authority of the PoA holder, activated upon confirmed mental incapacitation; three, create an independent medical panel to verify mental incapacitation and activate the PoA; four, provide a clear, court-supervised process for appointing guardians if no PoA holder was chosen earlier; and five, ensure accountability and supervision to protect the incapacitated person’s interests and dignity. 

The United Kingdom’s (UK) Mental Capacity Act of 2005 serves as an excellent model. Organisations like the Moneylife Foundation advocate for similar laws in India. Their extensive research (bit.ly/ 4jij6NV) compares practices in

five countries — United States, Canada, Australia, the UK, and Germany —and shows how far India still needs to go. 

Truth be told, with India’s senior citizen population growing, such legal safeguards have become critical. These citizens don’t seek government funds; they simply want reassurance that their twilight years won’t become a nightmare of helplessness despite having enough financial resources. 

Given my family’s history, I have taken several precautions. My spouse and I jointly own all movable assets on an “either-or survivor” basis, ensuring that either of us can manage the assets independently if needed. We are also selling immovable properties where joint ownership does not resolve the mental incapacitation issue.

 

But personal precautions alone are not enough. My father’s ordeal taught me that preparation brings peace of mind only when backed by supportive laws — without them, awareness alone is inadequate. I sincerely hope the organisations striving for these crucial legal reforms succeed. I hope to see these regulations implemented in my lifetime — and God willing, never have to use them.

 

The writer heads Fee-Only Investment Advisors LLP,a Sebi-registered investment advisor; 

X: @harshroongta