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

There is an important distinction between an individual's capacity to sue and her capacity to adequately prosecute or defend her rights. An incapacitated person does not lose her ability to assert or defend her rights in a litigation context because she is incapacitated. The law provides safeguards so that an agent, guardian ad litem or other authorized person can step in when a person's incapacity has affected her ability to adequately act for herself.

This distinction may seem obvious, but a facial reading of statutory law may muddy the issue. Pursuant to CPLR 3211(a)(3), a party may move for judgment dismissing a cause of action on the ground that the party asserting the cause of action does not have “legal capacity to sue.”