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In New York State, as in most states, the law presumes that an adult eighteen years of age or older is capable of handling his or her own affairs. When a person can no longer make safe decisions regarding their personal affairs or property or has become susceptible to undue influence or fraud, a guardian may be appointed by the Court to manage their affairs and make necessary decisions.
At Cona Elder Law, we understand the tremendous emotional burden families endure when faced with the prospect of an incapacitated loved one. Our Long Island elder law attorneys will help you navigate the complex legal procedure to have a guardian appointed so that you may properly care for your loved one.
A Guardianship is a powerful legal tool designed to help families protect a loved one who has become incapacitated. If a loved one cannot make financial or health care decisions for themselves and has failed to appoint a person to handle such matters on their behalf by executing a Power of Attorney or Health Care Proxy, they may require the appointment of a Guardian.
Pursuant to Article 81 of the Mental Hygiene Law, the Court must find that the guardianship is necessary to provide for the personal needs and property management of an incapacitated person. The individual’s functional level and functional limits are considered, including:
-The individual’s actual needs
-Their ability to perform the activities of daily living
-The individual’s mental abilities
-The individual’s physical illnesses
The Court will determine the best person to be the Guardian. The same person can be Guardian for both Personal Needs and Property Management or separate Guardians can be appointed. Co-Guardians can also be appointed. If there are no family members or loved ones willing and able to serve as Guardian, the Court can appoint an “independent Guardian” from a Court approved list. The individuals or agencies on this list have been pre-qualified and background checked. Every situation is different and the Court’s job is to hear all sides and reach the right result for your loved one.
A Guardian may be appointed to serve as a substitute decision maker if a person is incapacitated due to certain functional limitations that affect their ability to tend to their personal needs or make prudent decisions with respect to their property management.
When a Court determines that a person requires a Guardian, the Court will tailor the Guardian’s powers to meet the needs of the incapacitated person while not being overly restrictive. Personal needs powers include decisions regarding medical care, medical treatments, hiring care providers such as home health aides or other services, and decisions regarding where the incapacitated person should live, including placement in a nursing home.
A Guardian of the Property may be granted authority to marshal an incapacitated person’s assets, pay their bills, create Trusts, sell real estate and handle retirement assets.
The Guardian can also engage in asset transfers and Medicaid planning with the Court’s approval. Effective Medicaid planning can protect the incapacitated person’s assets by making him or her eligible for government benefits.
In some cases, a Guardianship proceeding becomes contested and litigation may ensue, often because loved ones disagree about the care and needs of their aging family member, assets may have allegedly been misused or misappropriated, or the aging person themselves disputes the need for the appointment of a Guardian.
Contested Guardianships are often hard-fought, emotionally trying, time consuming and costly. A guardianship is a complex court proceeding but when it is contested, the Court adheres to a strict interpretation of the rules of evidence. This means that when you are involved in a contested Guardianship proceeding, you don’t need just an Elder Law attorney, you need an experienced Elder Law litigator who can be your zealous advocate in an adversarial courtroom such as the experienced attorneys at Cona Elder Law. At any given time, we are litigating over 1,000 active civil lawsuits, many of which are contested guardianship proceedings.
A Guardianship proceeding in New York is contested when:
1. The individual disputes that they need a Guardian:
By way of example, the individual can have a diagnosis of dementia but still be capable of executing a Health Care Proxy and Power of Attorney. However, even if the individual has the capacity to execute a Health Care Proxy and Power of Attorney but still requires additional support managing their healthcare and/or finances, if they either refuse to appoint a Health Care Proxy and/or Power of Attorney or if they wish to appoint a person who is clearly unsuitable to serve in such a role, the guardianship matter would be litigated.
2. The previously appointed Health Care agent is not adequately providing for personal needs and will not voluntarily resign:
Even if the individual appointed a Health Care agent prior to their incapacity, if the agent is shirking their obligations but refuses to resign, a Guardianship proceeding must be brought to have them removed as health care agent and a Personal Needs Guardian appointed.
3. The previously appointed Power of Attorney is not responsibly managing assets or has stolen assets and will not voluntarily resign:
Like the Health Care Proxy example above, even if the individual appointed a Power of Attorney agent prior to their incapacity, if the appointed financial agent is derelict in their duties or misusing or misappropriating the individual’s assets, a Guardianship proceeding must be brought to have them removed as the financial agent and a Property Management Guardian appointed. In many cases, the financial agent will fight the revocation of the Power of Attorney as they know they will likely be audited, forced to repay the misused or misappropriated funds or in severe circumstances, face criminal charges.
4. There is a disagreement as to who should be the Guardian:
Even if it’s clear that the individual is incapacitated and requires the appointment of a Guardian, a dispute can arise as to who that Guardian should be. Under these circumstances the Court will look at the relationship between the person seeking Guardianship (the Petitioner) and the individual, the family circumstances and dynamics, the best interests of the incapacitated individual, and the suitability of the Petitioner to serve in a fiduciary capacity (ex. criminal record, recent history of bankruptcy filings, outstanding civil judgments, etc.).
At Cona Elder Law, our experienced Elder Law attorneys and seasoned litigators will help you navigate the complex court process to protect your loved one. We zealously advocate for our clients while compassionately guiding them through the guardianship process in all court jurisdictions throughout New York State and we’ll do the same for you.
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