Estate Law Questions? Ask an Estate Lawyer.
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.
thank you, XXXXX XXXXX is helpful
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.
And yes, an attorney needs to exercise due diligence - they can be subject to disciplinarian action if they fail to do so.
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.
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;
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.
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.
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.
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).
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
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).
There's also a Physician's Affirmation that is recommended, to help bolster the case.
And the court may choose to appoint an independent behavioral health therapist to make his/her recommendations to the court.
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
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).