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Fall 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...
To read the entire article,
please visit
our web site.
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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