Abstract
According to the U.S. Census Bureau, approximately 330 Americans turn 60 years of age each and every hour. Thus goes the aging of the baby-boomer generation, those Americans born between 1946 and 1964 (U.S. Census Bureau, 2006, 2009). 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 the late eighties or early nineties, unheard of a mere 30 years ago. These numbers will place a demand on many resources. For certain, 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 law offices consider the aforementioned as a package and strongly suggest that clients 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 need 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 (General Obligations Law, 2009). All practitioners should review this new statute carefully before drafting a power of attorney. In the prior statute, only the principal was required to sign and have the signature acknowledged; now, both the principal and the agent must sign and have their respective signatures acknowledged. Major gift-giving authority may be delegated only by rider, that rider must be signed by the principal, and the signature must be acknowledged and witnessed by two witnesses, neither of whom may be a donee. There are additional changes, and I urge all to thoroughly familiarize themselves with those changes before drafting a power of attorney. Ordinarily, principals designate an agent to make decisions in the event that they cannot make them themselves, 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. In guardianship, a person is appointed to make health care or financial decisions - or both - on behalf of an individual 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 (name changed) 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 92-year-old man who had had a devastating stroke. Margaret assured me that she and her brother were close and that they had a long-term, loving relationship. On 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 his mental health had been profoundly affected: he is no longer able to climb steps, is inappropriately paranoid and argumentative, has short-term memory loss in the extreme, and is undernourished and not capable of remembering to take his many medications for conditions related to his advanced age and physical and mental illnesses. …
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