Filing an Article 81 Guardianship

CaregiverHelen

Anyone have experience filing an Article 81 Guardianship on behalf of their spouse? My husband, who has Lewy Body Dementia, and I are fighting financial abuse by my POA stepson but now a lawyer for my husband claims my DH suddenly wants a divorce from me! (again). My husband tells ME he does NOT want a divorce and the lawyer is wrong. He claims his lawyer won’t listen to him, and he continually tells him that he wants me as his POA as his wife and caregiver of 25 years. The stepson doesn’t want to allow this to happen. I was advised that filing an Article 81 for my husband would help solve this mess. Hubby is 84, diagnosed in 2017. Any experienced advice? We are in New York State. Thank you.

dayn2nite2

Get an attorney experienced with this type of filing.  Nobody here can give you legal advice.

Why would you even have accepted him back without also getting control of financials and his health care decisions?  You're in a very bad position here.

Is this even worth the enormous sum of money it will take to fight this?  I'd rather spend it on a divorce attorney who will assure I'll get a decent settlement.  That was my advice the first time this occurred.  Pack him up, take him to stepson.  Make sure you have what money you need safe from the stepson's hands.

CaregiverHelen

Maybe I am stupid, but I like to think I stay because I love him and am loyal and know that he is sick and needs my help. Privately at home he constantly tells me he loves me and appreciates my care. I don’t know where this divorce thing came from again. (Well....I guess I do know). It’s the abuse from the step “kids” that has really started to take a toll on my health, aside from the caregiving stress we endure. I am here 24/7 for him. They do nothing. Tomorrow I’m actually going for a cardiac stress test and sadly that might finally help me make a decision about what I need to do.

dayn2nite2

Sometimes love and loyalty are not enough when you don't have the legalities on your side.  Unless you have lots of money to burn, you will spend a very large amount of money and unless you can convince a court that your stepson will not care for him properly (this means legally properly and not what you deem properly), you will probably lose.  Then you'll be divorced anyway.

He signed the documents when he was more cognitively with it, so the court will always favor that arrangement.

Cynbar

It's wonderful to be loving and caring and altruistic, but it won't feel so good if you get nothing and are out on the street. I imagine the stepson would be quite happy to do this. Protect yourself now, see a lawyer and decide what is the best course of action for your interests. It's no laughing matter to be a destitute senior. Your stepson has all the authority because your husband gave it to him ---- consider that while you are risking your future caring for this man. Your security matters too, don't let them take it away from you.

DrinaJGB

Opportunity makes the thief. This is what I have learned in over 10 years of dealing with predatory in laws.

 Our long and arduous journey into this nightmare began with an unscrupulous estate attorney telling my DH's sisters that the only way to obtain guardianship(the goal being in order to be able to control his part of an inheritance from a trust)-- of my DH for 30 years is to have me declared unfit.

  SO-- they proceeded to start a rumor mill saying I was going to divorce my brain injured spouse, and then hired a PI to stalk me and track my every move by illegally placing a GPS tracker on my vehicle because they were so hoping they would find me dancing on a table in some bar and having a party.

There was no wrongdoing on my part found. But they were not giving up.

  SO then they had the same sleazy attorney draft an amendment to the trust giving them complete control of his DHs portion of the trust. This was illegal as a matter of law because the trust prohibited any amendments after the death of one of the founders (the father)--making it irrevocable. Nevertheless--it was done and here we are.

That was 10 years ago and we are still fighting.

 You need to weigh the pros and cons and get advice, because even if you are in the right it can drag out ad infinitum and end up costing a boatload of money SO the question you have to ask yourself is how much blood, sweat , tears and cash do you want to invest in fighting this? It is a long, hard and painful road for sure--and has cost me far more than just money.

What is the price of your peace of mind--that ends up being the real question.

LadyTexan

I don't know anything about Article 81 guardianship. 

I recall taking to my elder law attorney about guardianship. He did warn me that pursuing guardianship would be expensive and the outcome would be uncertain.

JJ401

My friend did a guardianship and it went fairly easily, but your situation is complicated by the stepson's PoAs and what your husband supposedly said to "his" lawyer. You really need a lawyer --yesterday.

Your situation is the second marriage spouse (my) nightmare. I completely understand why you are acting as you are. You love your husband and want what is best for him. But, you are up against your stepson who has already engaged a lawyer (who may not be aware of the extent of your husband's dementia).

See a lawyer. Find out whether there is a way to protect your husband and yourself. 

eaglemom

You need to seek out and Elder Care Attorney ASAP. Since its a Friday you have all weekend to make this your only priority. Have paperwork, documents, etc ready by Monday. On Monday make the call and stress its imperative for you to be seen immediately. Then you'll have the information you need to go forward.

I'm sorry your having to go through this - family sometimes are our worst enemies.

eagle

Crushed

The horrors everyone is describing are why I have never done family law.  (note this is a family law issue not really elder law) Suffice it to say I could not prevent some of the same horror in my own family.  There was not even greed, just mean spirited stupidity 

I just note that when you call his son "the stepson"  you are already having trouble  viewing the case as a legal matter. He is a SON.    Contested guardianships are a NIGHTMARE

It is absolutely routine on second marriages to have children be the POA not the spouse. 
Our family assets are in a family trust and my daughters are the Trustees after me.  

My FIL married a very very nice woman after the death of my MIL  but there was a generous pre-nup and my wife was the trustee of his trust.   When FIL died we made sure wife #2 got everything she was entitled to.  But she never had control of his finances

See a family law expert and protect yourself.