Legal Question in Wills and Trusts in New York

Re: Terminally ill husband with incompetent spouse squandering money

The Courts usually treat married couples as a single entity, and don't like to get in the middle of their decisions on how to spend jointly held money. Given your mother's lack of capacity, its likely that you step father already transferred all of her money to a joint account, or outright to himself.

If you have evidence that he is spending the money in an inappropriate way (just having lots of "extra money" is not sufficient), then you could apply to become Mom's guardian under Article 81 of the Mental Health Law. You would need to allege that your stepfather's power-of-attorney was inadequate to handle your mother's personal or financial need, and that she was in physical or financial danger.

Guardianships are expensive, and this one would certainly be contentious, so should probably be your last resort. I would suggest confronting your stepfather with your concerns and seeing if he has an explaination, or a plan to pay for your mother's long-term care (for instance, he may be working with a lawyer to get her eligible for Medicaid). If you are not happy with his answers, then look for an Elder Law attorney in your area and ask about a Guardianship for Mom. If you need help finding a qualified attorney, you can contact your local Bar Association, or go to the National Academy of Elder Law Attorneys (www.naela.com)and click on the "locate an attorney" icon.