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NS-Change Estate Documents During Life Turmoil
Jan L. Warner & Jan Collins

Question: My sister has been totally disabled since she was involved in an automobile accident a year ago. The wreck was not her fault. At the time of the accident, she and her husband had been separated for more than a year and were in the process of getting divorced, so she has been living with my husband and me.

She and her husband have two small children (4 and 6). Although he left more than a year before the accident to be with another woman, he has refused to support the kids and has been held in contempt of court for not paying child support (my sister had to go back and live with our retired parents before the accident). He went to court and the judge gave him an order of custody of the children after the accident.

To make matters worse he has been at the hospital and our home, making all of my sister's healthcare decisions as if nothing had happened to their relationship. He has even hired a lawyer to handle my sister's accident case while living with the other woman and keeping my niece and nephew there.

My sister has been near death several times, and my family is concerned about him making her decisions. While she was in the hospital, he barred me and my parents from visiting her. The hospital and doctors say that as the husband, he has the authority to make these decisions. She is living with us because he does not want her in a nursing home because of the expense. Is there anything we can do?

Answer: You bet! It is rather obvious that once the poster boy for deadbeat dads smelled the potential of money from your sister's accident case, he became "Mr. Mom." Why? In addition to whatever he might receive as her husband from the accident case, if he has custody of the children, he will seek to control their finances and receive Social Security payments for them. Based on the situation you describe, there is clearly a conflict of interest for your brother-in-law to be making your sister's healthcare decisions or handling her finances. What to do?

First, concerning healthcare decisions: Since your sister is unable to make her own healthcare decisions and has not signed a healthcare directive, the person who has authority to make these important decisions is established by state law, according to statutory priorities. Because a guardian has not been appointed, her husband has priority -- that is, unless, as here, there is a pending court order in their divorce case. In this situation, your parents would be next on the list -- then you.

Because of the clear conflict of interest and the potential of economic gain to an errant spouse on her death, we believe it is dangerous and inappropriate for the husband to make any healthcare decisions for your sister. Since you are not getting cooperation from the hospital and physicians, we suggest that you and/or your parents bring an emergency proceeding to seek appointment as guardians for your sister, so they will have the authority to make these decisions.

Second, concerning custody of the children: Since the children were in your parents' home because of non-support, we believe that they have a compelling case to seek their custody. Your folks may also want to bring guardianship proceedings for the children in order to control any funds to which they may be entitled. Since predictions of the future are often best made by looking at the past, it appears to us that your parents are more stable choices than your brother-in-law.

Who will control any liability suit is yet another question that must be answered. As guardians, your parents would be placed in control. We urge your parents to hire a good lawyer to help navigate through the maze of difficult issues your family faces.
This situation points up the necessity of participants in divorce cases to plan for the unexpected. At a minimum, healthcare powers of attorney and durable financial powers of attorney appointing trusted individuals to protect their health and financial interests upon disability are essential. If these documents had been in place, many of the difficulties facing this family could have been avoided.

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