The effects of aging, a serious illness or a terrible accident may result in you becoming so incapacitated that you are unable to manage your own affairs. Of course none of us want to think about this ever happening. On the other hand, it is a good idea to plan ahead just in case it does happen. To plan for this possibility it is wise to have estate documents such as an advance health care directive (AHCD) or power of attorney already set up so that both your financial and health care affairs are managed according to your wishes. In the absence of such documents the court may step in and place you in a guardianship. A guardianship is a legal arrangement that gives someone the court-ordered authority and responsibility to manage another adult's affairs, including his (or her) finances and medical care. To learn about the estate planning steps that you should consider taking now to ensure that your wishes are followed should you become incapacitated, contact a Suffolk County conservatorships lawyer at the Law Offices of Stephen Bilkis & Associates who will be able to help you develop a comprehensive estate plan consistent with your goals.
GuardiansWhen the court is charged with naming a guardian, it will determine who is the most qualified. Typically the court will seek to appoint a family member. However, if no family member is willing, able or qualified to serve, the court may appoint a professional guardian who is not a family member. The guardian will remain in place as long as the court determines that he (or she) is needed. Under New York Mental Health Law § 81.36, 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, a guardianship will remain in place until the person under the guardianship passes away.
A guardian can be appointed to take care of your medical care and you personal care or to handle your finances. If you are capacitated a guardian will likely be appointed to handle both. Referred to as a "guardian of the person," a guardian who is appointed to make decisions about your personal well-being will make decisions about your medical treatment, housing, and other aspects of your personal care. If necessary, the guardian may decide that it is in your best interest to live in an extended care facility or a group home.
A "guardian of the estate" makes decisions about your finances. The guardian will manage your assets, pay your bills, make investments, and collect income. The court will require the guardian of the estate to keep detailed financial records and regularly report to the status of your finances.
Whether the guardian is charged with caring for your estate or your person, the guardian has a fiduciary responsibility to make decisions for you that are in your best interest. The problem with this is that unless you provide written instructions as to how you would like your personal and financial affairs to be cared for, while the guardian may make objectively appropriate decisions, he (or she) may not make decisions that you would necessarily make. If you leave written instructions in a living will, heath care proxy, or durable power of attorney for finances, your attorney-in-fact, healthy care proxy, or guardian will have guidance as to how you want your affair cared for.
Guardian appointment processA petition to appoint a guardian can be filed by the incapacitated person, the executor of the person’s estate, the trustee, a health care facility, or anyone who is concerned about the welfare of the person. The judge will review evidence as to whether the alleged incapacitated person is indeed incapacitated. If based on his (or her) mental capacity the judge determines that a guardianship is required the judge will make the appointment.
As an experienced conservatorships attorney in Suffolk County will explain, the State of New York has rules as to preferences for who should be appointed the guardian. Typically the spouse is given first preference followed by adult children, adult siblings and then other blood relatives. However, if the court feels it is your best interest, the court will appoint someone other than a blood relative such as a family friend or even a public or professional guardian. In all likelihood, however, a relative will be appointed. Public or professional guardians do not work for free. If a guardian is appointed for you, that person will be paid a reasonable fee for his or her services out of your estate.
While a guardianship may not seem like the best alternative, there are some positive aspects to a guardianship. Because guardians are supervised by the court, it is less likely that your estate's assets will be mismanaged or that you will be taken advantage of in some other way. Guardians are required to regularly submit reports to the court and must obtain permission before making major decisions such as selling real estate or terminating life-support.
A guardianship will end when the court issues an order ending the guardianship because you pass away or your condition improves such that you no longer need a guardian.
Challenging a guardianshipIf the Surrogate’s Court appoints a guardian, the court can also court remove, discharge, or modify the powers of a guardian when appropriate. A guardian is required to act in the best interests of the guardian. Thus, whether family or friend, if someone believes that a guardian is not acting in the best interests of the incapacitated person and has breached his or her fiduciary duty, that person can petition the court to have the guardian removed or replaced.
Challenging a guardianship is not easy. If you feel that a guardianship is not warranted or that a guardian is not doing his (or her) job properly, a skilled Suffolk County conservatorships lawyer can help present the strongest possible case to the Surrogate’s Court.
Avoiding court appointed guardianshipsNot every adult who struggles to care for himself or herself needs an guardian. There are less restrictive strategies to that do not require the involvement of the court that will ensure that the person’s affairs are cared for.
A Suffolk County conservatorships lawyer can help you determine how best to help your loved one manage their personal finances and affairs in the face of a serious health crisis.
Contact the Law Offices of Stephen Bilkis & AssociatesA comprehensive estate plan does not only include documents that will ensure that your property is properly distributed upon your death, it also include strategies to prepare you and your family in the event you become incapacitated due to illness or accident. Estate documents that you should consider include a durable power of attorney, health care proxy, living will, last will and testament, and trust. To learn more about steps you should take to avoid a guardianship, as well as steps you should consider to ensure your wishes are followed in the event you become incapacitated, contact an experienced conservatorships attorney serving Suffolk County at the Law Offices of 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: Suffolk County, Bronx, Staten Island, Nassau County, Brooklyn, Manhattan, Queens, Long Island, and Westchester County.