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Jewish World Review April 14, 2004 /24 Nissan, 5764

Jan L. Warner & Jan Collins

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Consumer Reports

Why can dad's new wife control his life? | Q: I am an only child. My 85-year-old father remarried a woman with four children shortly after my mother died. Her oldest daughter, 51, is unemployed and has been living with them in Dad's house since he remarried. From what I've seen, the daughter has been exerting a lot of pressure on him.

Dad was hospitalized after a fall, and my visits with him were curtailed, although the wife and her children had full run of the place. I have been prohibited from talking to his doctors, but it's obvious that Dad is losing weight and is mentally deteriorating. The plan is to place him, permanently, in an assisted-living home that I think is substandard.

Dad had an old document appointing my mother as his power of attorney. He also had an old will, but he never updated either one after Mom died. My lawyer says that I could bring a court proceeding to try to gain control over Dad's person and property. However, he did say it would be an uphill struggle because his wife of six months has priority to be appointed to make his financial and health care decisions.

I am divorced, and there was a structure in place to allow my ex-wife and I to deal with our children. Why is this not true with seniors like my father who, in many ways, is like a child now? Why should a wife of six months be put in this position, especially when my father's money is being used to support her and her daughter?

A: People who may become incapacitated have two ways to secure their health-care decisions and finances: 1) Appoint people to make these decisions for them (by signing over power of attorney), or 2) Trust that the court system will make appropriate choices for them.

In some states, guardians are appointed as financial and personal trustees, while in others, guardians handle the personal care and health issues, and conservators are the financial trustees.

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In either case, however, without appropriate powers of attorney for finances and health, control over people like your father may well be "up for grabs" at the time of incapacity. While your stepmother, as a spouse, has primary responsibility to act for her husband, this does not mean that she will be appointed. Because the relationship between the guardian/conservator and the incapacitated person is one that requires a great amount of trust, the person appointed must put the incapacitated person's interests first.

Because proceedings like these can take an incapacitated person's liberty, money and rights, the appointment process involves many safeguards, including the appointment of an attorney, a guardian appointed for the duration of the legal proceedings, or both for your father. While the law varies from state to state because of differences in laws, the guardian investigates the facts and is an adviser, while the attorney is an advocate. In some states, these roles are merged into the same person.

Given the facts — including the short duration of the marriage, funds that may be being used to provide support for a 51-year-old stepdaughter, and your being cut off from information and access to your father — you might be able to gain control of your father's care and finances. It will cost much more, however, than it would if documents had been prepared in advance and in accordance with your father's wishes.

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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.


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How do I protect my parents from falling?
Bad 'Will' makes seniors prey
Bankrupt seniors now the debt generation
How can we help ease Dad's depression?
Compensating sister for Mom's care; purchasing life insurance policies from terminally ill individuals
My aunt profited from grandpa's weak will; foreclosing against senior is best
Pay employer taxes for caregivers?
Help Mom organize her finances
Where can seniors get the best health info?
How do we stop our mooching daughter?
Can you stop a double-dealing lawyer?; caregiver red flags
How the government bilks seniors
Dad's new wife took the inheritance
Parents' trustee choice a hidden blessing
Finding the money for home care
Elderly mom is sweet on a hunky aide
'Ziva' gets the scoop on nation's nursing homes
Care decisions for 'elder orphans'
Seeking help for dementia victims
Read admission-package 'agreements'; booting a patient once Medicaid kicks in
Can the kids block our cash flow?; childless couple agonizes over whether to use
powers of attorney or a living trust to manage our assets

Control your assets from the grave
Slacker son will blow his fortune; lawyer's role in "estate-planning"
Mom remarried and spent my inheritance; doesn't want daughter-in-law to receive anything from estate
Can we stop our brother from swindling us?
What Gifting Will Disqualify You From Medicaid
The 'magic' language for a power of attorney agreement
Is care insurance a healthy choice?
Is there protection against Medicaid costs?
Long-term care insurance comes up short
HIPAA -- too much privacy?; nursing home doc could care less
Private pay nursing home residents pay more
Separated families should use care managers
What Makes Up a Caregiving Team?
Who is the client, parents or children?:

© 2003, Jan Warner