Legal Question in Elder Law in New York

Re: Power of Attorney for ailing relative

Are they too ill to sign the form because of physical inability or mental infirmity? This is a critically important point. If they are mentally okay, even if only for a brief period during the day, then an attorney can work around this problem in a variety of ways; the attorney will definitely want to go to the hospital or nursing home to oversee the execution of the Power of Attorney to make sure it conforms to the senior's wishes and is done properly.

If the senior is no longer of sound mind they can't give Power of Attorney. Period. In this case (which is very common and very unfortunate) you may need to proceed under Article 81 of the New York Mental Hygiene Law and ask the court to appoint a Guardian of the Person and Property for mom or dad.

Unfortunately, realistically it's not a process that's "user friendly" (meaning that you probably can't do it without a lawyer). Various legitimate reasons for this.

If you're lucky (meaning everyone in the family is agreeable and there's a responsible person to step up to the plate and take control), then it may "only" cost a few thousand dollars and take less than two months. If the proceeding is contested by anyone in the family, or if the Court Evaluator (assigned by the Court to review the case objectively) suggests that an attorney needs to be appointed for the senior to protect their rights, or if there's squabbling within the family, then you're looking at many, many thousands of dollars in legal fees (which come out of the senior's assets). A terrible situation.

Good luck, and god bless.

Rick Bryan

New York, NY