Question: I am an only child. My father, now 85, remarried shortly after my mother died six months ago. His new wife, 74, is very sharp, while he has been declining rather rapidly. She has four children by three prior marriages. Her oldest daughter, age 51, is unemployed and has been living with them in Dad’s house since he remarried and, from what I have seen, has been exerting a lot of pressure on him.

Dad was hospitalized after a fall, and my visits with him were curtailed while the wife and her children had full run of the place. I have been cut off from the doctors who will not talk to me. But it’s obvious that Dad is losing weight and is fading cognitively. The same thing is happening with the nursing home where Dad is being rehabilitated. The plans are to place him permanently in an assisted-living home that I believe is substandard.

Dad had an old document appointing my mother as his power of attorney. He also had an old will, but he never updated either one after Mom died. My lawyer says that I could bring a court proceeding to try to gain control over Dad’s person and property, but that I would have an uphill struggle because his wife of six months would have priority to be appointed to make his financial and health care decisions. I have been divorced, and there was a structure in place to allow my ex-wife and me to deal with our minor children. Why is this not true with seniors like my father who, in many ways, is like a child now? Why should a wife of six months be put in this position, especially when my father’s money is being used to support her and her daughter?

Answer: With the rapid growth of the number of elderly comes disease and deterioration, which can lead to care requirements for those who become incapacitated, either physically or mentally. The provision of care to protect our incapacitated elderly citizens from themselves or others who may take advantage of them is derived either from 1) personal choice in the appointment of fiduciaries as set forth in powers of attorney for finances and health that are prepared and properly signed by them while they have the capacity to understand them, or 2) requirements generated by state courts in guardianship and/or conservatorship proceedings that follow legislative mandates to appoint fiduciaries to make these decisions.

In some states, guardians are appointed as financial and personal fiduciaries, while in others, guardians handle the personal care and health issues while conservators are the financial fiduciaries.

In either case, however, without appropriate powers of attorney for finances and health, control over people like your father may well be “up for grabs” at the time of incapacity. While it is correct that your stepmother, as a spouse, has the statutory priority to act for her husband, this does not mean that she will be appointed. Because the relationship between the guardian/conservator and the incapacitated person is one of high fiduciary standards, the person appointed must put the incapacitated person’s interests first.

Because proceedings like these can take an incapacitated person’s liberty, money, and rights, the appointment process involves many safeguards, including the appointment of an attorney, a guardian ad litem, or both, for your father. While this will vary from state to state because of differences in laws, the guardian ad litem investigates the facts and is an advisor, while the attorney is an advocate. In some states, these roles are merged into the same person.

Taking the NextStep: Given the facts -- including the short duration of the marriage, funds that may be being used to provide support for a 51-year-old stepdaughter, and your being cut off from information and access to your father -- you might be able to gain control of your father’s care and finances. It will cost much more, however, than it would if documents had been prepared in advance and in accordance with your father’s wishes.