A recent report by the Alzheimer’s Association stated that one in nine older Americans has Alzheimer’s disease.1 Based upon these numbers, it is clear that Alzheimer’s disease, dementia or cognitive disorders will likely touch our personal and professional lives. Proper estate planning, like the execution of a power of attorney, can assure that a trusted agent is able to manage the practical and financial tasks that arise if someone becomes incapacitated.

This article focuses on one of the many powers granted to an agent in the New York statutory short form power of attorney related to claims and litigation. New York General Obligations Law 5-1502H further clarifies how that language must be construed. This article details some of the practical issues and concerns that may occur in the context of using a power of attorney to conduct litigation strategy, or how to proceed when there is no power of attorney in place.

Capacity to Sue

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