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LegalGems
LegalGems, Attorney
Category: Estate Law
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i live in in wyoming &my father lives in ny; i have had his

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i live in in wyoming &my father lives in ny; i have had his power of attorney since 2008, but never invoked it, and i was a joint owner on his checking account so that i could pay his bills should he become incapacitated. he is 90 years old & suffers from progressive dementia since 2011; in jan 2013 he had a serious car accident and was near death, after he left home at 1 AM to go to a doctor's appoinment; he was confused about the time; while he was in the hospital the doctor's advised me that his dementia was causing confusion, paranoia, poor judgement & poor impulse control; the state revoked his driver's license based on the doctor's reports. while he was hospitalized i invoked the POA and paid his bills, taxes, contracted for repairs on his home (his insurance was to be canceled if repairs were not done), sorted his papers; the POA gave me the ability to re-imburse my expenses, which i did...reimbursed my travel from wyoming to NY; my father has been estranged from my brother for over twenty years & disinherited from his inter vivos trust back in 2008; i have been the only child to visit my parents, and my father, after my mother died in 2005, and have helped my father after her death; when my father was discharged from the hospital in march 2013, he tried to have me arrested twice by the NY state police for theft; the NY State police declined, as they found no financial mafesance on my part & the fact that i had a valid POA & was a joint account holder with my father; both times the NY State troopers talked to my father about moving to assited living or having a caretaker; both troopers reported to my attorney in wyoming that they felt he was incompetent to be living alone & making decisions; since then, my brother has re-appeared on the scene to visit my father & my father has attempted to withdraw over $150K from an account that i hold jointly with him; my father told the state police the money was for a real estate deal gone bad, another time he stated it was for emergency spending; i was able to re-deposit the funds my father in June 2013 went to an attorney in NY, did not sdvise her of his history with my brother or of his dementia diagnosis, and revoked my power of attorney and removed me as a joint account holder and trustee of his trustand replaced me with my brother, whom my father hasn't seen in years, & who is in a foreclosure/bankruptcy action in NC where he lives.
my atorney in wyoming is asking my father's attorney in NY for medical documentation that overturns the previous diagnosis of dementia, and to look into possible elder abuse; my question is how can a person who has dementia, diagnosed for over two years, hire an attorney, and make changes to legal documents that were put in place several years ago? doesn't an attorney need to exercise professional due diligence and investigate, especially when an estranged family member suddenly reappears?

LegalGems :

Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! One moment please as I review your question in greater detail. Remember, I can only provide general legal information.

Customer:

thank you, XXXXX XXXXX is helpful

LegalGems :

I am very sorry to hear of this. This must be heartbreaking for you. Given the severity of the situation, you may want to consider a conversatorship. This is a very expensive and time consuming process, unfortunately; but it is generally appropriate when a person really isn't capable of caring for themselves. Basically the person who takes on this responsibility becomes responsible for all decisions relating to the person suffering from dementia. It sounds as if it will be contested, given the background facts (your sibling will likely allege undue influence in order to defeat the conservatorship). Have you contacted adult social services? Generally a social worker will get involved in circumstances as extreme as this.

LegalGems :

And yes, an attorney needs to exercise due diligence - they can be subject to disciplinarian action if they fail to do so.

LegalGems :

Generally, a Power of Attorney is not overturned unless a breach of fiduciary duty (ie self dealing) is involved; or if the person regains mental competency. However, it appears that there is substantial documentation of the incapacity. And the fact that your dad tried to take out such a large sum of money for conflicting reasons would likely further substantiate the contention that he can no longer manage his finances.

Customer:

a conservatorship will be contested, and the local county adult protective services closed out my father's case due to the fact that he was uncooperative & they can not force their services on an individual. he will not talk to me anymore & refuses the advice of friends & relatives that he needs to be in assited living or have a caretaker;

LegalGems :

Just because a conservatorship is contested does not mean that it will not be allowed. Have you spoken with an attorney that specializes in conservatorships - not just estate planning - but focuses solely on conservatorships/guardianships? Courts tend to see it as a red herring when a long lost relative all of a sudden takes an interest in one's twilight years, especially when they are mentally vulnerable.

LegalGems :

The AARP has a helpful explanation of the process of conservatorship. Are you familiar with the process? Generally the courts will conduct an investigation; they can even appoint a separate attorney for the subject of the conservatorship. Professional witness testimony is often introduced, to determine mental capacity, family history, etc.

Customer:

i did speak to an attorney in ny & she advised me that it will take a long period of time, i'm trying to do right for my father but he is defiant, and wants to die in his own home, which is ok, but he will not agree to in-home care; his home is in absolute disrepair, infested with mice, electrical outlets don't work, toilet is broken in one bathroom, & he just refuses to repair anything or spend money.

LegalGems :

The attorney is correct - it does take a long time, which is unfortunate. However, if your father is placing himself at personal risk, I am surprised the adult protective services is not getting involved. Did you speak to a supervisor? Generally social services will assist in conservatorship proceedings, especially in circumstances as extreme as this - when a senior is a danger to himself (by virtue of not taking care of his surroundings - that goes to mental capacity).

Customer:

social services said they closed the case because he physically able to take care of himself, and the problems in the house that i pointed out to them they did not seem to be concerned about; thank you f

LegalGems :

Please check this out: http://ocfs.ny.gov/ohrd/materials/151670.pdf - I would suggest you skim the pamphlet in its entirety, but see specifically page 20 81.08(c)(3).

LegalGems :

There's also a Physician's Affirmation that is recommended, to help bolster the case.

LegalGems :

And the court may choose to appoint an independent behavioral health therapist to make his/her recommendations to the court.

Customer:

thank you for you help; the last social worker i spoke to said my father was ok 70 percent of the time and incompetent 30 percent of the time; i will check out the pamphlet; thank you for your help

LegalGems and 5 other Estate Law Specialists are ready to help you
Thank you for the positive rating - it is appreciated.

Your last post prompted me to look into a few more options.

Here's some other information I came across: http://www.health.ny.gov/health_care/managed_care/complaints/index.htm. There are many different numbers you can try - see specifically the third one down. They may find someone who will take the time to further investigate this (the 30% incompetent comment is just not OK- that means they are acknowleding he can harm himself 30% of the time). Sometimes you just need to keep calling different sources until you find a public official/employee that will be outraged and will take the time to connect you to the appropriate person.

If you want to complain about a specific social worker, please see http://www.op.nysed.gov/opd/complain.htm

I hope you are able to get your father the assistance he needs. Take care.
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