Estate Planning When There's a Chronic Illness

Q: My father’s Alzheimer’s has progressed to the point where he cannot recognize me or other family members. He never completed an estate plan. What are my options to be able to pay his bills and make health care decisions for him? I am an only child and feel overwhelmed.

A: The first issue to consider is whether your father has the legal capacity to execute a Power of Attorney (which would enable you to handle his finances) and a Health Care Proxy (which would allow you to make medical decisions for him if he’s unable). While legal capacity is often a gray area, the test is whether the individual is able to comprehend the nature and consequences of the documents he/she is signing.

If your father lacks legal capacity, which seems to be the case as he cannot recognize you or your family members, your remaining options are limited. You may still be able to pay his bills to the extent you are named as a joint-owner on any of his bank accounts. However, your authority would be limited to any such jointly-owned accounts and without a Power of Attorney you wouldn’t be able to handle any other assets or apply for government benefits on his behalf, to name a few examples.

The only remaining option would be to file a petition for the Court to appoint you as your father’s legal guardian pursuant to Article 81 of New York’s Mental Hygiene Law. This would involve the filing of the petition and order to show cause with the Court and then serving these papers on all interested parties such as his wife, siblings, and parents, if living. All the parties involved will then be interviewed by the Court Evaluator who will submit a report to the Court to inform its decision as to whether a guardian is necessary and, if so, what powers the guardian needs to have to help your father with his activities of daily living. After the hearing is held, if you are appointed guardian by Court Order, you will then be able to handle your father’s financial affairs and make health care decisions for him, but only to the extent the Order grants you these powers.

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Needless to say, this is a very brief overview of the guardianship process, which can be complex and time-consuming, especially if the guardianship petition is contested by other relatives or loved ones. This is why it is important to retain a skilled attorney to represent you in the guardianship proceedings and help you take care of your father’s finances and health care decisions in the absence of a Power of Attorney and Health Care Proxy.

Brittni Sullivan, Esq. and Dylan Stevens, Esq. are attorneys at Burner Law Group, P.C. focusing their practice areas on Estate Planning and Elder Law. Burner Law Group P.C. serves clients from Manhattan to the east end of Long Island with offices located in East Setauket, Westhampton Beach, New York City and East Hampton.