New York Conservatorships Lawyer

Whether it is due to age, an illness, or an accident, there may come a time when you are not able to manage your own affairs. Even though it may be uncomfortable to think about such a possibility, it is wise to plan for it. To plan for this possibility, it is a good idea to have estate documents in place such as an advance health care directive, trust, and durable power of attorney for finances in place so that both your financial and health care affairs will continue to be managed according to your wishes. In the absence of such directives, in New York the court may step in and place you in a guardianship. Sometimes referred to as a conservatorship, in New York a guardianship involves the court appointing someone to manage your affairs, including your finances and medical care. The person appointed is referred to as a guardian. To learn more about New York’s law related to guardianships and how you can plan in advance for incapacity, contact a seasoned New York conservatorships lawyer at Stephen Bilkis & Associates who will help you develop a comprehensive estate plan that includes documents that will protect your interest in the event you should become mentally incapacitated.

Types of Guardians

In general, a court will appoint a family member to act as your guardian. Under New York Mental Hygiene Law section 81.19, in order to be eligible to serve as a guardian, you must be at least 18 years old, unless you are the parent of the ward. If you are, the minimum age requirement is waived. However, if there is no suitable family member available, the court may appoint a stranger such as a non-profit organization or social services organization. The guardian will remain in place as long as the court determines that a guardian is needed. If your medical condition improves enough so that you are able to resume taking care of your affairs, the court will end the guardianship. Otherwise, guardianships remain in place until the ward pass away.

Guardianship proceedings recognize the multifaceted nature of an individual’s life, acknowledging that decisions pertaining to personal well-being and financial matters require distinct considerations. This differentiation in responsibilities leads to the appointment of specific guardians – one to address personal needs and another to oversee financial affairs.

Guardian of Personal Needs- Guardian of the Person

• Healthcare Decisions: A guardian of personal needs plays a pivotal role in making decisions related to the ward’s healthcare. This encompasses choices about medical treatments, medications, and healthcare providers.
• Living Arrangements: Determining suitable living arrangements for the ward falls under the purview of a guardian of personal needs. This may involve choices between independent living, assisted living facilities, or nursing homes.
• Quality of Life: Ensuring the overall quality of life for the ward is a fundamental responsibility. This includes addressing social, recreational, and daily living aspects to enhance the ward’s well-being.

Guardian of Financial Needs- Guardian of the Estate

• Asset Management: The guardian of financial needs is entrusted with managing the ward’s assets, investments, and financial resources. This involves making prudent financial decisions aligned with the ward’s best interests.
• Income and Expenses: Monitoring income sources, handling bills, and overseeing financial transactions are key responsibilities. The guardian ensures that the ward’s financial obligations are met promptly.
• Protection from Financial Exploitation: Safeguarding against financial exploitation is a critical aspect of the guardian’s role. This includes identifying and preventing scams, fraudulent activities, or undue influence that may threaten the ward’s financial well-being.

Guardian Appointment and Aging

As individuals age, the potential for health-related challenges and cognitive decline increases. This reality underscores the importance of considering guardianship as a protective measure for seniors who may face difficulties managing their personal and financial affairs. There are several key reasons why seniors may need a guardian.

Cognitive Impairment

• Alzheimer’s and Dementia: Seniors diagnosed with Alzheimer’s disease or other forms of dementia may experience progressive cognitive decline, impacting their ability to make informed decisions about their personal and financial matters.
• Cognitive Disorders: Various cognitive disorders can affect seniors’ mental capacities, making them vulnerable to exploitation or self-neglect.

Physical Health Challenges

• Serious Illness or Disability: Seniors facing severe illnesses or disabilities may struggle to manage daily activities, including medical appointments, medication management, and other essential aspects of personal care.
• Mobility Issues: Physical limitations due to age-related conditions can hinder a senior’s ability to handle routine tasks, leading to the need for assistance in both personal and financial matters.

Financial Vulnerability

• Financial Exploitation: Seniors may become targets of financial exploitation, including scams, fraud, or undue influence. A guardian can play a crucial role in protecting seniors from such threats and ensuring their financial resources are used for their benefit. For example, there was an allegation of financial exploitation. Putnam County’s Adult Protective Services (APS) unit became involved and performed an evaluation of Thomas Acito. This evaluation was part of an investigation into potential financial exploitation. The assessment concluded that Thomas lacked sufficient capacity for daily activities, such as money management, banking, cooking, shopping, and housekeeping. Subsequently, APS initiated a guardianship proceeding under article 81 of the Mental Hygiene Law in the Putnam County Supreme Court. The purpose was to appoint a guardian for the husband’s person and property due to the identified incapacity. Acito v. Acito, 874 N.Y.S.2d 367 (N.Y. Sup. Ct. 2009)
• Inability to Manage Finances: Cognitive decline or unfamiliarity with modern financial systems may render seniors incapable of managing their finances independently.

Isolation and Dependence

• Lack of Support System: Seniors who lack a reliable support system may find themselves isolated, making it challenging to seek assistance when needed. A guardian can step in to provide the necessary support and make decisions aligned with the senior’s best interests.

Legal Protections

• Legal Recognition of Incapacity: Guardianship provides a legal framework for acknowledging and addressing the incapacitation of a senior. This formal recognition is essential for facilitating decisions related to healthcare, living arrangements, and financial matters.
• Avoiding Exploitation: By appointing a guardian, the court aims to prevent the exploitation of vulnerable seniors, ensuring that their rights and interests are protected.

Avoiding Court Appointed Guardians

While guardianship can be a necessary and protective legal measure, many individuals prefer to plan for their future to avoid the need for guardianship. Advanced planning allows individuals to designate agents through powers of attorney and healthcare proxies, granting trusted individuals the authority to make decisions on their behalf.

Through comprehensive estate planning, including the creation of living wills, trusts, and durable powers of attorney, an experienced New York conservatorships lawyer can helped sure that individuals maintain control over their affairs even in the face of potential incapacity.

Executor vs Guardian

The role of the executor you nominated in your will is to manage your estate once you pass away. Your executor does not automatically get to serve as your health care agent, attorney-in-fact, or guardian. If you want the person who you name as your agent in your durable power of attorney to also handle your affairs after your pass away, discuss with a skilled conservatorships attorney in New York how to update your estate documents to reflect your wishes.

Contact Stephen Bilkis & Associates

A comprehensive estate plan will not only prepare you and your family in the event you become incapacitated due to illness or accident, it will also make sure that your goals are achieved once you pass away. Your personal estate plan may include a last will and testament, trusts, living will, powers of attorney, an advanced health care directive, as well as other tools. To learn more about steps you should take to prepare your estate in event of your incapacity, avoid the possibility of conservatorship, contact a skilled conservatorships attorney serving New York at Stephen Bilkis & Associates. We will help you develop an overall estate plan that reflects your individual goals. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Queens, Westchester County, Nassau County, Suffolk County, Manhattan, Bronx, Brooklyn, Long Island, and Staten Island.