Legal Question in Elder Law in New York

If a spouse dies and the other spouse is deemed unable to care for his/herself due to illness, how does one become the primary care taker? Scenario: Spouse has Alzheimer's. Together husband and wife have 4 children who have different views of how to proceed with their mother- (state funded homes, private homes, in-home care, etc). While the deemed-competent spouse is still alive, is there a way that s/he can ensure that one of the children becomes completely responsible for the care of the deemed incompetent individual, with the ability to make definitive decisions? Thus, leaving the others no say. Also, does it matter if this is across multiple states (parties involved live in different states)?


Asked on 1/10/14, 11:49 am

1 Answer from Attorneys
Richard Bryan Richard Bryan Attorney PC

No, there's no way that the surviving spouse can dictate who becomes guardian of the incapacitated person. The court will decide after one of the children step up to the plate and hire a lawyer and file a Petition for Guardianship under Article 81 of the Mental Hygiene Law. The children who live out of state will need to come to where the incapacitated person is located if they want to participate in the hearing or request that the incapacitated person be relocated from where's he or she is currently living to be better cared for. Your brothers and sisters had best understand that if they can't come to an agreement and show a united front to the judge and nominate one person as guardian, this may be a long and very costly affair, and all the lawyers and court evaluator get paid out of the assets of the incapacitated person.

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Answered on 3/25/14, 4:59 am


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