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Ask Nancy

by Kimberly Trueman, Esq.

Question: My father is a widower and was recently diagnosed dementia. I am worried he is becoming incapable of taking care of himself. He never executed a health care proxy or a power of attorney. Can he sign them now? If not, what options do I have to get him the care that he needs?
Answer: Just because your father has a diagnosis of dementia, does not necessary mean he is unable to execute the advance directives he needs to designate you to take care of his personal and financial needs.
The capacity that your father would need to sign these documents differs depending on what document he is signing. For instance, the level of capacity your father needs to sign a health care proxy is very low. He only need know who you are and that he would like you to make medical decisions for you. The law presumes that a health care proxy is valid unless evidence is introduced to support its invalidity. The law requires a higher capacity level for a durable power of attorney. To execute a valid durable power of attorney, your father would need to know who you are, but also have a thorough understanding of what he was signing and the implications thereof. While analyzing capacity may seem easy, it can be a tricky task. Therefore, the decision of whether or not your father has the requisite capacity should be made by an attorney who has experience in Elder Law.
Unfortunately, if your father’s dementia has progressed to a point where it is too late for him to execute advance directives the only option is to make an application to the court in the county in which your father resides to be appointed as guardian of his person and property, pursuant to Article 81 of the Mental Hygiene Law. This involves filing of a petition with the court in support of your position that your father is incapacitated, does not fully understand or appreciate his lack of capacity and, therefore, is likely to suffer harm if you are not appointed as guardian to protect him.
Once the petition is filed, the court will set a date for the hearing and notify all interested parties such as your father’s other children, if any, and his siblings, if living. Those parties would have the opportunity to come to court and object to the proceeding, or to allege why someone else should be appointed as guardian. The court will also appoint a Court Evaluator, usually a local attorney experienced in this field, who will visit with your father and interview you, your siblings, and any other interested parties. The Court Evaluator can review the finances, if relevant to the case, and can even review medical records, under certain circumstances. At the hearing, the Court Evaluator will present a written report and will testify as to his or her findings of fact and recommendations. Ultimately, after hearing all the evidence, the court will determine if a guardian is needed, what powers the guardian will have and if you are the right person to act as the guardian.
Once a guardian is appointed, that person will have to undergo court-directed training to become certified. In addition, a guardian will have to maintain financial records and may be called upon to submit an accounting. In some cases, the court will require that the guardian obtain a bond equivalent to the incapacitated person’s assets.
Regrettably, your father’s situation is a sad reminder of the importance of having advance directives in place. While certainly not the easiest method to helping your father, a guardianship proceeding may be your only solution at this point. Seek the advice of an Elder Law attorney specializing in Article 81 Guardianship Proceedings in your area to learn more about commencing an action.

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