Dear Len & Rosie,
My mother passed away last May without a will. My stepfather is in the hospital right now with only days left to live, again without a will. I do not have a power of attorney. My step-father's physician at the hospital wrote a letter stating that my step-father is unable to make decisions and has a terminal disease. How do I get conservatorship or anything related so that I can handle his affairs? There isn't much but what there is I would like to take care of.
It's important to have an estate plan. This may be a particularly hard lesson for you, because your step-father is at least partially incapacitated and probably cannot give you a power of attorney or make a will to properly dispose of his estate. This lesson is more for other readers of this column.
As a minimum, all of you should have a durable power of attorney and an advance health care directive, so that trusted family members or loved ones can manage your finances, pay your bills, and make important medical decisions in case you become incapacitated. You should also have a will to spell out how your estate is to be distributed after your death, or, better yet, a revocable trust to avoid probate if you own more than $150,000 in assets. Tracey is looking at the prospect of filing for a conservatorship over her step-father because he didn't have a durable power of attorney. Don't let this happen to you.
Tracey, you probably do not need a conservatorship. If your step-father has only a few days to live, his bills will wait until his death when you can be appointed as the administrator of his estate by the probate court. The only reason you would need to be appointed as conservator now is if his medical care providers need some to make decisions regarding his immediate medical treatment. In this case, you would become the conservator of your step-father's person (his health care decisions), as opposed to his estate (his assets).
Normally it takes at least a month to be appointed as conservator, because the law requires that thirty days notice of a conservatorship petition be provided to the proposed conservatee and his or her immediate relatives. You can however file an emergency petition with the court to appoint you as the temporary conservator of your step-father's person, pending the court hearing a month from now. If it is absolutely necessary, you can be appointed as your step-father's conservator within a day or two. Go see an elder law attorney immediately.
Because neither your mother or step-father made wills, upon your step-father's death, his estate will be divided into two portions. Everything your step-father inherited as a result of your mother's death will pass to you and any other of your mother's children. The assets your step-father owned prior to your mother's death will pass to his own surviving family members by intestate succession.
Len & Rosie