|Autumn 2009 Newsletter
NOTE: The names and locations below have been changed to protect their privacy.
GUARDIANSHIP CONCERNS IN NEW YORK STATE
According to the US. Census Bureau, approximately 330 Americans turn sixty years of age each and every hour. Thusly, goes the aging of the baby boomer generation, those Americans born between 1946 and 1964. Of course, the consequence of our aging is the aging of our parents, and aunts and uncles. Today, most families have at least one member in his or her late eighties, or early nineties, unheard of a mere thirty years ago.
Importance of an Estate Plan
Such staggering numbers will place a demand on many resources, perhaps a few never contemplated. One thing is for certain, and that is that estate planning will become a priority for most everyone, no longer for a select few. It is simple enough to have an attorney prepare a health care proxy, living will or power of attorney. Such documents are customarily prepared by attorneys as a complement to the preparation of a will, many offices consider the aforementioned as a package, and strongly suggest the client execute all documents.
When prepared comprehensively and executed properly, the result of that planning is as follows: a principal delegates authority to an agent to make health care decisions or property management decisions for that person in the event that the principal is incapable of making those decisions. Recently, in response to the needs to protect the elderly (in ever-increasing numbers) and for clarity, the rules for the preparation and execution of powers of attorney have been substantially modified in New York.
Ordinarily, a principal designates an agent to make decisions for her in the event that she cannot make them herself, and the document that memorializes those directions is accepted by the health care provider or financial institution, as the case may be. At times, there may be a dispute about the authenticity of the document, but, normally, when such a document is prepared by an attorney who supervises the execution it will withstand scrutiny.
More commonly, problems arise from the failure of the individual to have any document at all. Therein lies a very expensive, labor intensive and emotionally frustrating problem. Frequently, the only solution is to commence a guardianship proceeding to have a person appointed to make health care or financial decisions – or both – on behalf of a person who is deemed incapacitated by family or friends or an independent business relation.
The Peters Family
Earlier this year, I was retained by the Peters family to assist Margaret Peters in her application to the court to be appointed guardian of the person and property of her brother, Matthew Simpson, a ninety-two year old man who had had a devastating stroke in February. Margaret assured me that she and her brother were close and that they had a long-term, loving relationship. Upon speaking with both my client and her brother, it became clear that Matthew was not about to consent to anything. He stated, unequivocally, that his goal was to return to his apartment and continue as he had been prior to the stroke, despite his extremely compromised condition.
Since the stroke, both his physical and mental health had been profoundly affected. It is obvious that he simply can no longer perform the activities of daily living that most individuals take for granted. If released to the community, there is no question that he could not safely cook, shop, bathe, pay bills, run errands and schedule and keep his numerous doctor’s appointments.
Matthew is currently residing in a New York City facility. He has refused to pay for his medical costs, which as of October 1, 2009 total over $60,000.00. That bill remains unpaid, as do all of Matthew’s bills. Matthew’s failure to execute a health care proxy and power of attorney has affected most everyone with whom he deals. This is a perfect example of what we can expect to occur more and more, as the baby boomers age. Matthew is extremely frustrated, his sister is extremely frustrated and the facility – as well as all of Matthew’s creditors – are beyond frustrated.
The entire guardianship process is expensive, and after endless delays, everyone emerges dissatisfied in the extreme. In the absence of a comprehensive, properly drafted and executed health care proxy and durable power of attorney, the Peters’ family had little option but to commence a guardianship proceeding.
Our Winter Newsletter will conclude this topic, so stay tuned…
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The above list is for general information purposes only. It is not intended to constitute individual legal advice or a specific recommendation to any particular client.
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