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Guardianships

There are several court appointed guardianships that are common, and sometimes essential, for estate planning purposes.  In my opinion, the most important is the Article 17-A Guardianship (named for the section of the law that governs it).

Parents or relatives of mentally disabled or developmentally disabled individuals seek 17-A guardianships in order to help them provide for the individuals long-term care.  Importantly, this allows the Court appointed guardian to make all decisions on the part of the disabled person.  Often times, families want to keep their child at home with them after he or she turns 18 years of age.  Parents will need 17-A authority to make medical and long term care decisions as well as other financial and property related decisions.

17-A guardianships fall under the jurisdiction of the Surrogate’s Court in the state of New York.  Among other items, the Petitioner (the person seeking the appointment of the guardian) must provide two affirmations (sworn statements) from the A.I.P’s attending physician, attesting to the allegedly incapacitated person’s disability and mental incapacity.  (A licensed psychologist may also provide an affidavit, however the evaluations must be current within a year of submission to the court.

All petitioners should seek Section 1750(b) powers, granting the guardian the power to make medical decisions on behalf of the A.I.P.  This is the same as someone being authorized to serve as a health care proxy where the principal has regular mental capacity.

GUARDIANSHIPS FOR ADULTS

Like many aspects of elder law, guardianship powers may be extremely narrowly tailored or perfectly wide-ranging and all encompassing.

Many individuals that have guardians simply have limitations in their day-to-day functioning and may lack the full ability to completely understand the results of their actions or inactions.  Their guardian may just be charged with managing the persons banking and paying their bills.

Regardless of their specific duties, serving as a guardian is a significant responsibility.  Guardians are required to submit annual reports to the Court and keep a careful accounting of what they are doing.

Don’t Become An Unexpected Ward of the State!

 Failure to plan ahead and execute basic health care directives and powers of attorney may result in a person unexpectedly and without their consent becoming a ward of the State.  Initially this means that a person (the A.I.P. – an alleged incapacitated person) becomes the subject of a court proceeding where the petitioner requests that a guardian be appointed on the A.I.P.’s behalf.

This happens when a person exhibits symptoms or behavior that indicates that they do not fully understand or appreciate their current circumstances, nor are they likely to comprehend the consequences of their actions or inactions.  For example, you suffer a medical emergency and end up in the hospital.  Even if your physical medical condition is stable, the doctors may believe you are not able to make decisions about your care on your own.

The hospital or nursing home will bring a guardianship petition under Article 81 of the Mental Hygiene Law seeking a court appointed guardian on your behalf.  If no family can be located the result will be the appointment of the Commissioner of the Department of Social Services as your guardian.

Prior to a hearing, and depending upon your health, the Commissioner, or one of her deputies, will serve as your new temporary guardian.  She will take an inventory of your assets.  You will likely be held in the hospital, assisted living facility or nursing home, perhaps against your will.  You are alleged to be incapacitated, so despite your protests, voluntarily checking out of the facility is not possible.  If relatives are located they will not be able to enter your home for any reason, even to bring you essential items.  If they enter your house, they can be arrested and charged with trespass.

Despite having your best interests in mind, this is often a very traumatic and invasive experience.  It is also an exceptional and unnecessary waste of your financial resources.  If you are the subject of this proceeding, and if you have any resources, you will have to pay legal fees for the hospital, your court appointed attorney and the court evaluator.  You will also be responsible for charges you incur during your stay in the hospital or nursing home as you await the court’s determination on whether to appoint a guardian.

Additionally, if the court does appoint a guardian, that individual is entitled to a percentage of your gross estate as compensation for serving as your guardian, irrespective of the amount of time they put in to managing your affairs.  If you have family heirlooms or other personal treasures, they may be disposed of without your knowledge and lost forever.

In most cases, a properly executed Health Care Proxy, Living Will and Power of Attorney will prevent this absolute worst-case scenario from taking place.



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393 Old Country Rd, Suite 203, Carle Place, NY 11514
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393 Old Country Rd Suite 203 Carle Place, NY 11514  |  Phone: 516.538.9700
1441 Broadway Suite 5019 New York, NY 10018  |  Phone: 646.569.5523