Question: My sister has been totally disabled since she was involved in an automobile accident two months 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. They have two small children (four and six). Although he left more than a year before the accident for another woman, has refused to support the kids, and has been held in contempt of court for not paying support (my sister had to go back and live with our retired parents), he went to court and the judge gave him an order of custody of the children. To make matters worse, he has been at the hospital making all of my sister’s health care decisions just as if nothing had happened. He has even hired a lawyer to handle my sister’s accident case. Yet he is still living with the other woman with the children. My sister has been near death several times, and my family is concerned about him making her decisions. He has even barred me and my parents from visiting with her. The hospital and doctors say that as the husband, he has the authority to make these decisions. 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 health care decisions or to be handling her finances. What to do?

First, concerning health care decisions: Since your sister is unable to make her own health care decisions and has not signed a health care 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 would be the next choice – 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, and then you. Because of the clear conflict of interest and the potential of economic gain on her death, we believe it is dangerous and inappropriate for the husband to make any health care decisions for your sister. Since you are not getting cooperation from the hospital and physicians, we suggest that 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.