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Health & Fitness

Ask the Attorney: My Elderly Father Has Dementia; How Can I Get Control Of His Finances?

Dear Ask the Attorney:

My father is suffering from dementia.  He is very forgetful and cannot care for himself any more.  I told him to see a lawyer a couple of years ago for his estate planning but he never went.  I am trying to handle his finances for him but the banks will not speak with me.  I am also worried about some of the money he has been spending because he is very easily influenced by other people.  What can I do?

G.M.

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Christopher J. Roman, Esq. is an Associate with Einhorn Harris and a member of the firm’s Taxation/Trusts and Estates Department.  He handles a wide variety of tax-related matters for his clients, including estate planning, estate and trust administration, estate litigation and tax controversies for businesses, families, executives, entrepreneurs and other high net worth individuals.

 

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Dear G.M.:

I am very sorry to hear about your father.  It is a difficult situation for a family to have to go through. 

You should first check to see whether your father ever signed a Power of Attorney.  In a Power of Attorney, he would have appointed a person to handle his financial affairs for him if he were ever unable to do so.  If he has a Power of Attorney, the person he appointed would be able to speak to his banks on his behalf.

However, you did mention that your father never saw an attorney, which means that he may not have executed a Power of Attorney.  If that is the case, then you will need to consider whether or not you should make an application to the court to request that your father be declared incapacitated and that you be appointed his guardian.  A guardianship proceeding could result in your father being declared incapacitated, which means that he would not be able to enter into contracts with other people.  That would help ease your concerns about him spending money and being influenced by others.  If you are appointed as guardian, then you would be able to speak with the banks and other financial institutions about your father’s accounts and have the power to act on those accounts.

To file for a guardianship, you, as the person seeking to obtain guardianship, should retain an attorney to prepare a complaint that states the background of your father’s current family, medical and financial condition as well as your requests that he be declared incapacitated and that you be appointed guardian.  In addition, you are also required to submit the certifications of two doctors who attest to the fact that your father is incapacitated and can no longer care for himself. The preparation of these documents is complicated, so it is important for you to have an attorney advise you in this process.  Remember, it is you who is filing the application not your father.  Once the complaint is filed, however, the court will appoint an attorney to represent your father in the proceedings.  This is so he has independent representation during the proceedings.

Guardianships are a difficult topic for any family, and especially for the ailing parent.  It is important to seek the advice of an attorney to determine whether or not a guardianship proceeding is appropriate.  It is also important to execute estate plans, including powers of attorney, when parents have capacity to avoid these issues in the future.

 

"Ask the Attorney” is a blog in which answers to questions submitted to asktheattorney@einhornharris.com may be answered. The answers to the questions are for informational purposes only and are not to be construed as legal advice or the creation of an attorney-client relationship. The facts of each case are different; therefore, you should seek competent legal representation.

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