What is a Guardianship?

By Jennifer Cona, Esq. Originally published in the Long Island Press, Power of Your Attorney.

Caring for a loved one as they get older is often very difficult. When that loved one needs help making medical decisions, handling finances, paying bills, and other such tasks and they do not have advance directives, they may need a guardian. A guardian can be appointed to handle the personal needs and/or the financial affairs of the incapacitated individual, whichever or both as needed.

What Does it Mean to be a Guardian?

A Guardian is someone who steps up to assist a person who is incapacitated. If a person has certain functional limitations that affect their ability to tend to their personal needs or make prudent decisions with respect to their property management and they have failed to appoint a person to handle such matters on their behalf via a Power of Attorney or Health Care Proxy, they will require the appointment of a Guardian. Any concerned party may petition for Guardianship on behalf of a person in need of assistance.  The Petition for Guardianship is brought in the Supreme Court in the County where that person resides.

The Court will tailor the Guardian’s powers to meet the needs of the Incapacitated Person while not being overly restrictive.  Examples of personal needs powers include decisions regarding the medical care of the Incapacitated Person, such as consenting to or refusing major medical treatments, whether the Incapacitated Person requires a home health aide 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:

• Collect all assets
• Pay bills
• Handle other financial transactions
• Handle tax returns, tax planning and related matters
• Create Trusts
• Sell real estate

The Guardian can also seek the power to engage in asset transfers and Medicaid planning on behalf of the Incapacitated Person.  Effective Medicaid planning can protect the Incapacitated Person’s assets by making him or her eligible for government benefits to cover the costs of home care or nursing home care.

If you have a loved one in need of assistance, contact our office at 631.390.5000. Our experienced and compassionate Guardianship attorneys will help you through the court process every step of the way.

Jennifer B. Cona, Esq. is the Founder and Managing Partner of Cona Elder Law, an award-winning law firm concentrating in the areas of elder law, estate planning, special needs planning, estate administration and litigation, and health care law. The firm has been ranked the #1 Elder Law Firm by Long Island Business News for eight consecutive years.  For additional information, visit www.conaelderlaw.com.