My father had a medical procedure done and died about a week later in the hospital in Massachusetts. I am concerned he was mistreated. There is a legally appointed conservator who is now trying to sell his house. His ex-wife was his health care proxy and possibly power of attorney and, in the past, has blocked me from getting medical information regarding my father.
Elder Law Attorney
If your father is deceased, the conservator CANNOT sell the house -- his power ended when your father died. Send him a letter and advise him of this fact. Similarly, the ex-wife's legal powers also ended at your father's death.
As the next of kin, you have the right to file a petition for probate (with a will) or administration (without a will) at the Probate Court. You need to be your the estate's Personal Representative in order to settle his financial affairs and to get access to the medical records. Since the ex-wife was not married to your father at the time of his death, she does not have priority over you to seek this appointment.
I strongly suggest you see a probate attorney for guidance.
E. Alexandra "Sasha" Golden is a Massachusetts lawyer. All answers are based on Massachusetts law. All answers are for educational purposes and no attorney-client relationship is formed by providing an answer to a question.
Real Estate Attorney
I'm sorry to hear that you have lost your father.
The powers of the conservator, health care proxy, and power of attorney are all null and void now that your father has passed. Someone needs to probate your father's estate and petition a court for appointment as representative of his estate. If there is a will, it must be probated. You should retain counsel to assist you in proceeding, and you should not delay. If there is no will, then you may want to gain control of this situation before his ex-wife attempts to.
Christopher Vaughn-Martel is a Massachusetts lawyer with the firm of Vaughn-Martel Law in Boston, Massachusetts. All answers are based on Massachusetts law and the limited facts presented by the questioner. All answers are provided to the general public for educational purposes only and no attorney-client relationship is formed by providing an answer to a question. To schedule a consultation with a lawyer, and obtain advice and review of your specific legal issue, please call us today at 617-357-4898 or visit us at www.vaughnmartel.com.
Elder Law Attorney
I am sorry for your loss.
As has been said, all powers of the Conservator, Health Care Proxy and Attorney in fact have terminated. However, in light of the fact that your father had an EX wife, it is possible that the document provided for a replacement upon the termination of the marriage. It is also possible that the documents included some access to health care records following death. HIPAA allows, if the principal permits, for authorized representatives to access health care records for up to two years following death. Your father may have executed a HIPAA Release or his HCP may have been adequately drafted to allow the proxy agent to get this information.
Otherwise, in order to get access to these records you will need to get appointed as the personal representative of his estate. Good luck.
*** LEGAL DISCLAIMER I am licensed to practice law in the Commonwealth of Massachusetts and have an office in Reading.. My practice is focused in the areas of elder law, estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state.
As other counsel has told you, the consesrvator no longer has any power after the death of your father. I handle medical malpractice cases and what I do in this situation is have the client (you, in this casae) file a petition for probate, ask the court to be appointed personal representative and identify the claim sas a contingent asset of the estate. Once you are appointed, only you have the authority to obtain your father'sd medical records. I would suggest you do this. Good luck.
This answer does not consitute legal advice and does not create an attorney-client relationship. The answer is based only on the facts presented. This answer is basd only on Massachusetts law.