Suppose you end up in a terrible accident or suffer a serious illness such that you are not able to communicate or are mentally incapacitated. What would happen to your finances? Who would make sure your personal affairs are cared for? Who would answer your doctors' questions about your medical care? Many people do not plan for this possibility and as a result, when a medical emergency occur, loved ones are often unsure of what to do. In the absence of advanced planning, should you end up not being able to care for yourself, answer questions about your medical care, or take care of your finances, New York State will likely intervene and plan use in a conservatorship. This means that someone who is appointed by New York State will become your guardian and take over making decisions for you. To learn about how you can plan in advance to ensure that your wishes are followed should you become incapacitated, contact a Bronx Conservatorships Lawyer who will be able to help you develop a comprehensive estate plan that includes planning for incapacity.
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A conservator is a person appointed by the court to oversee the affairs of someone who cannot do so on their own do to mental incompetence or for some other reason. Another term for conservator is guardian.When may a court appoint a conservator?
If you become so ill or so injured in an accident that you are unable to take care of yourself, a court may appoint a guardian for you. In New York, the standard is that you must have a mental incapacity such that you are unable to provide for your personal needs or are unable to manage your property and financial affairs, and you cannot understand and appreciate the nature and consequence of such inability. N.Y. MHY. Law § 81.02. Conservatorships are not the same for everyone who needs a conservator. To determine if you need a guardian and for what purposes, the court will require a functional assessment. As part of the function assessment, the court will measure your ability to manage activities of daily living as well as your ability to manage your personal property and financial affairs. The court will also consider whether there are health problems, mental disabilities or substance abuse issues, and whether your limitations are likely to cause you to harm yourself.What are the duties and responsibilities of a conservator?
The dues and responsibilities of a conservator depends on what the court determines the conservatee's needs to be. In some cases the conservator's duties will relate only to taking care of your financial affairs. In other cases the conservator's duties may focus on personal care. In still other cases, the conservator's responsibilities will be for both your all aspects of your life, including your medical care, personal affairs, and financial affairs.
Conservators 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. Your conservator can only exercise duties that he or she is authorized to exercise. The conservator must visit you at least 4 times a year. The conservator must use the utmost care and diligence when acting on your behalf, and show trust, loyalty and fidelity with respect to your affairs.
A conservator has a fiduciary relationship with respect to the conservatee. This means that the conservator must show a high standard of care when tending to the affairs of the conservatee. If the conservator fails to adhere to this standard, the court has the power to remove the conservator. N.Y. MHY. Law § 81.35What is the Conservator Appointment Process?
According to New York mental hygiene law, to start the conservatorship process someone will file a petition with the court asking the court to appoint a conservator over you. Such a petition is sometimes filed by a health care facility, someone who is responsible for your care, your heir, your beneficiary, your executor, someone who lives with you, or a person who you authorized to be your conservator or guardian. You can even file a petition for a conservator to be appointed over you. N.Y. MHY. Law § 81.06. The judge will review evidence as to your condition. If based on your function assessment the judge determines that a conservatorship is necessary the judge will make that appointment.
To be a conservator you must be at least 18 years old. The conservator can be a relative, a non-relative, a not-for-profit corporation, a social services official or public agency. Typically the court looks to the spouse to serve as conservator. If there is no spouse or if the spouse cannot serve, the court will look to adult children, adult siblings and then other blood relatives. However, if the court feels it is in your best interest the court will appoint someone other than a blood relative such as a family friend or even a public or professional conservator. In all likelihood, however, a relative will be appointed.
Public or professional conservators do not work for free. If a conservator is appointed for you, that person will be paid a reasonable fee for his or her services. N.Y. MHY. Law § 81.28. In addition the conservator will be reimbursed for expenses. The conservator's fees and expenses will be paid from the assets of your estate.
A conservatorship will end when the court issues an order ending the conservatorship because you pass away or your condition improves such that you no longer need a conservator.How can I avoid a court-appointed conservatorship?
The best way to avoid a court-appointed conservatorship and to make sure your wishes are followed is to plan in advance and execute a health care proxy and a durable power of attorney.
Durable power of attorney. One of the best ways to avoid a conservatorship is to execute a durable power of attorney. A power of attorney allows you grant to another person known as your "agent" or "attorney-in-fact" power to act on your behalf with respect to financial matters. Generally, a power of attorney terminates if you become incapacitated. However, in New York unless it specifically states otherwise a power of attorney is by law durable. A durable power of attorney remains in effect even if you become incapacitated. NY GOB Law § 5-1501A. You can draft your power of attorney do that it goes into affect only in the event that you become incapacitated. This would allow you to continue to take of your finances as long as you are able to. When the time comes that you cannot, then the durable power of attorney will "spring" into effect and your attorney-in-fact will take over handling your financial affairs. You can also revoke it at any time you choose to as long as you are mentally competent. Revocation of a durable power of attorney occurs automatically if you die, the purpose of the power of attorney is accomplished, or the attorney-in-fact dies or becomes incapacitated. NY GOB Law § 5-1511.
A durable power of attorney can give very broad or very specific powers to the attorney-in-fact. For example, with a durable power of attorney for financial matters, you can grant your agent the authority to perform financial tasks that a conservator might otherwise be empowered to do such as pay your bills, manage your property, pay your income and real estate taxes, manage your bank account, collect your government benefits such as Social Security and Medicare, manage your investments, manage your retirement accounts, operate your small business, and hire professionals for you. However, a power of attorney cannot grant your attorney-in-fact the power to make health care decisions for you. You would need to execute a health care proxy.
In addition, an attorney-in-fact and an executor are two different roles. Your attorney-in-fact will only have authority over your financial matters while you are alive. When you pass away, you estate will be managed by your executor if you have a will, or by an estate administrator if you do not have a will. If you want your attorney-in-fact to also handle your affairs after your pass away, you must also name that person in your will as your executor. Likewise, if you want the person who you named as your executor to also serve as your attorney-in-fact, you need to execute a power of attorney indicating so.
Health care proxy. Executing a health care proxy is the most effective way of avoiding a court-appointed conservatorship and maintaining control over decisions concerning medical treatment, visitation, and access to medical records. A health care proxy is similar to a power of attorney. In fact, in some jurisdictions a health care proxy is called a durable power of attorney for health care. It is a legal document in which you nominate another person, referred to as your heath care agent, to make health care decisions for you or in the event you cannot. It is distinguishable from a living will in that with a health care proxy you name a person to act for you while a living will is a set of instructions. A health care proxy and a living will are often used together in that your agent will follow the instructions in a living will.
Under New York’s Public Health law your agent’s authority to make health care decisions begins when your doctor determines that you have lost the capacity to make decisions for yourself and documents it in your medical records. N.Y. PBH. Law § 2983. This means that your agent is not permitted to begin to make decisions for you simply because you may be very ill, or because you may be unconscious. The doctor has to let your agent know when it is time for that person to act.
You can give your agent general authority to make health care decisions, or you can be very specific about what authority your agent has. In either case your agent is required to make decisions that are consistent with your wishes, your religious and moral beliefs, and that are in your best interest. Examples of the decisions that you can give your agent the authority to make in your health care proxy include whether the medical staff is permitted to give you artificial respiration, artificial nutrition, antibiotic, surgical procedures, dialysis, organ transplantation, and CPR. If you give your agent the authority to withdraw or withhold life sustaining treatment, before your agent can exercise that authority, New York law requires that a second doctor confirm that you lack the capacity to make health care decisions. N.Y. PBH. Law § 2983 (1)(a)
A health care proxy is very flexible so that you can also give your agent different authority depending on your condition. For example, you can give one instruction to your agent if you are terminally ill, a second instruction if you are currently incapacitated, but are expected to fully recover, and a third instruction if you have brain damage that makes you unable to recognize people and there is no hope that your condition will improve.
With a health care proxy you can give your health care agent the power to donate your organs and tissues. This means that you can allow your agent to donate your organs and tissues without limitation, or you can give more limited authority and specify which organs and tissues you want donated and for what reasons.
You also have great deal of flexibility in deciding who should be your health care agent. The law requires that the person be at least 18 years old, that the person cannot be your doctor unless your doctor is also your relative, and that the person cannot be an employee of the facility where you are admitted unless they are also a relative or unless you appointed them before you were admitted. N.Y. PBH. Law § 2981. Beyond those limitations, you can select anyone you want. However, because of the significant amount of responsibility that your healthcare agent will have you should take great care in making that selection. People typically select a spouse, significant other, adult child, sibling, some other relative, or a close friend. The person you select should be trustworthy and should know you well. Your health care agent should be someone who you know will follow your instructions as outlined in the health care proxy even if he or she does not agree with your decisions. You should discuss it with the person who you plan to name as your agent before you execute the health care proxy to make sure the person understands the responsibility he or she may have to undertake and that he or she also understands your preferences. It is also a good idea to name a second person as your successor agent in case the person who is your first choice is unable to serve as your agent.
In order to execute legally valid health care proxy, you must sign it in the presence of 2 witnesses who also must sign it. Your agent and your successor agent cannot serve as witnesses. N.Y. PBH. Law § 2981
Planning in advance for the possibility that one day you may be incapacitated is an important part of estate planning. Not only will having a health care proxy and durable power of attorney help ensure that a public guardian will not make decisions about your affairs, it will also give your family a measure of comfort that your wishes are being followed. To learn more about the steps you should take to avoid the possibility of being placed in a conservatorship, contact the experienced staff at Stephen Bilkis and 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 estate plan.