Can the hosptial provide paperwork to prove my dad is incapacitated?

1 answer | Last updated: Oct 12, 2016
Delia-p asked...

My father is in the hospital, he is in a coma and they are not sure if he will live or die. He owns a small business and my step mother does not have access to the business checking account to pay his restaurant bills. Can the hospital provide me with the proper paper work to take to the bank, so that my step mother can pay the bills? I know my father should have completed power of attorney but he did not. He thought he was too young for that.

D


Expert Answers

Carolyn Rosenblatt, R.N. and Attorney is the author of author of The Boomer's Guide to Aging Parents. She has over 40 years of combined experience in her two professions. As a nurse, she has extensive experience with geriatrics, chronic illness, pain management, dementias, disability, family dynamics, and death and dying. As a trial attorney, she advocated for for the rights of injured individuals and neglected elders. She is also co-founder of AgingParents.com.

Your question about whether the hospital can provide paperwork for the bank to prove that your father is incapacitated has a long and a short answer. The short answer is "no".

"The hospital" is not a person and as such can't help. The bank is probably not going to be willing to accept a statement, even from your father's treating physician that your father is incapacitated,thereby giving your mother access to the account unless your father signed something allowing this.

Banks have their own rules about who can have access to the business account (or any account), and they normally require permission from the account holder, such as a durable power of attorney, or the bank's own form power of attorney, both of which would have to be signed by your father. Without something in writing from your father or the business representative for the business itself, the bank is not allowed to give access to the account to others, related or not. They have to follow the law that prevents unauthorized persons from accessing a customer's account.

The only alternative that may be left is to have a family member appointed your father's guardian by a court. That will require proof of his incapacity in the form of a declaration (sworn statement) by the treating physician, and whatever other proof of the need for guardianship the court in your state requires. I suggest that you seek the immediate advice of an elder law attorney in your area and ask about getting an emergency guardianship. A guardian can sign checks and have access to all the financial records for your father. Getting a guardianship is going to cost money for attorney's fees and court, as well as the doctor's help. A court order appointing a guardian is something the bank is required to follow, and it must then allow the guardian access.

The startling thing about this situation, despite all the information about it, is that your father never signed a durable power of attorney and that no one in your family insisted upon that. Failing to get this document signed resulted in the crisis and expense you now face.

I hope that you, personally, will get your own durable power of attorney signed so that you will never have to burden your loved ones as you are now being burdened. The document is free (find the CA version on my website at AgingParents.com) and it costs no more than the notary's charge to witness your signature to complete it. Keep the original in a safe place, let the agent you appoint know where it is, and give a copy to that agent. This person should be someone totally trustworthy to act on your behalf, should you become incapacitated yourself one day. If you are a middle aged person, you are not "too young" to get yours done to prevent stress and expense for your family should they ever need it. No one is immune from possibly becoming incapacitated. We all need to be prepared.