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 occurs, 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, to answer questions about your medical care, or take care of your finances, the State of New York will likely intervene and establish a conservatorship, which in New York is called a guardianship. This means that someone who is appointed by the State of New York 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 skilled Bronx conservatorships lawyer at the Law Offices of Stephen Bilkis & Associates who will be able to help you develop a comprehensive estate plan that includes planning for incapacity.Establishing a guardianship
A guardian or 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. The person in need for a guardian is a ward.
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. Guardianships are not the same for everyone who needs a guardian. 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. In other words, you do not need to be in a coma, vegetative state, or hospitalized for a court to appoint a guardian. There must, however, be evidence that you are unable to manager your affairs.Duties and responsibilities of a guardian
The duties and responsibilities of a guardian depend on what the court determines the ward's needs to be. In some cases the guardian's duties will relate only to taking care of the ward’s financial affairs. In other cases the guardian's duties may focus on personal care. In still other cases, the guardian’s responsibilities will be for both your all aspects of your life, including your medical care, personal affairs, and financial affairs.
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. Your guardian can only exercise duties that he or she is authorized to exercise. The guardian must use the utmost care and diligence when acting on your behalf, and show trust, loyalty and fidelity with respect to your affairs.
A guardian has a fiduciary relationship with respect to the ward. This means that the guardian must show a high standard of care when tending to the affairs of the conservatee. If the guardian fails to adhere to this standard, the court has the power to remove the guardian. N.Y. MHY. Law § 81.35. To learn more about the duties and responsibilities of a guardian, seek the advice of a skilled Bronx conservatorships lawyer.Guardian appointment process
According to New York Mental Hygiene Law, to start the guardianship process someone will file a petition with the New York Surrogate’s Court asking the court to appoint a guardian. Such a petition may be filed by a health care facility, someone who is responsible for your care, an heir, a beneficiary, the person’s executor, someone who lives with the person, or a person authorized to be your guardian. You can even file a petition for a guardian to be appointed over you. N.Y. MHY. Law § 81.06. The judge will review evidence as to your condition. If based on your functional assessment the judge determines that a guardianship is necessary the judge will make that appointment.
To be a guardian the person must be at least 18 years old. The guardian can be a relative, a non-relative, a not-for-profit corporation, a social services official, or a public agency. Typically the court looks to the spouse to serve as guardian. 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, as a skilled Bronx conservatorships lawyer will explain, 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 guardian. In all likelihood, however, a relative will be appointed.
Public or professional guardians do not work for free. If a guardian is appointed over, that person will be paid a reasonable fee for his or her services. N.Y. MHY. Law § 81.28. In addition the guardian will be reimbursed for expenses. The guardian’s fees and expenses will be paid from the assets of your estate.
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.Avoiding a guardianship
The best way to avoid a court-appointed guardianship 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 for finances. One of the best ways to avoid a guardianship is to execute a durable power of attorney. A power of attorney allows you as the principal to 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 the principal becomes mentally 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 so that it goes into affect only in the event that you become incapacitated. This would allow you to continue to take care 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.
Health care proxy. Executing a health care proxy is the most effective way of avoiding a court-appointed guardianship 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 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.
As an experienced conservatorships attorney in the Bronx will explain, having a health care proxy will not necessarily prevent you from being placed in a guardianship arrangement. This still may happen, and your health care agent may be the person appointed to serve as your guardian.
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 § 2981Contact the Law Offices of Stephen Bilkis & Associates
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 for finances 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 guardianship, contact the experienced staff 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 1-800-NY-NY-LAW (1-800-696-9529) an experienced conservatorships attorney serving the Bronx to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Bronx, Nassau County, Queens, Staten Island, Brooklyn, Long Island, Manhattan, Suffolk County, and Westchester County.