In addition to making a will that sets forth how you want your estate to be distributed once you pass away, one of the most important aspects of estate planning is planning for the possibility that one day you may suffer a grave illness or serious accident that results in you being mentally incapacitated and unable to communicate or take care of yourself. While it may be uncomfortable to think about this possibility, it is a smart idea to plan for it. Such an accident or illness may happen at any time. Thus, it is also good idea to plan now, even if you are quite young and in good health. If you do not have a plan in place and you do become incapacitated, the court may intervene and appoint someone to make decisions for you called a conservator. Planning for the possibility that you may be incapacitated one day includes creating a living will, heath care proxy, durable power of attorney for finances, and a last will and testament. 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 Manhattan Conservatorships Lawyer who will be able to help you develop a comprehensive estate plan consistent with your goals.
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Generally speaking a conservator refers to a person who is appointed to oversee the affairs of an adult, and a guardian is a person who is appointed to take care of a minor. In other words, a conservator is an adult 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. To determine whether or not you meet this criteria, a court will require a functional assessment. For example, it will assess your management of the 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. The court will also consider whether based on your limitations you will cause harm to yourself.
The court does not take the matter of appointing a conservatorship lightly and will only do so as a last resort.What are the duties and responsibilities of a conservator?
If you are placed in a conservatorship the duties of your conservator will depend on your particular needs. The court will not automatically give a conservator authority over every aspect of your life. If it is determined that you are not capable for taking care of your financial affairs, your conservator may be empowered to manage your finances, manage your property, and enter into contracts for you. If it is determined that you are not capable of personal care, your conservator's duties will be related to helping you with self-care, mobility, make decisions about travel, and medical care. 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 use the utmost care and diligence when acting on your behalf, and show trust, loyalty and fidelity with respect to your affairs.
Because a conservator is a fiduciary, he or she is held to a very high standard. 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?
To start the conservatorship process someone will file a petition with the court asking the court to appoint a conservator over you. The judge will review evidence as to your condition. If based on your mental capacity 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. The New York State has rules as to preferences for whom should be appointed the conservator. 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 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 have an advanced health care directive which includes a living will and a health care proxy, as well as a durable power of attorney for finances.
Durable power of attorney for finances. One of the best ways to avoid a conservatorship is to execute a durable power of attorney for finances. 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 becomes void if you become incapacitated. However, in New York the rule is different. 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. 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.
In your power of attorney you can state when it goes into effect. For example, you can state that it is to go into effect when your physician states that you are mentally incapacitated to the extent that you cannot make decisions for yourself. If your condition improves to the extent that you are no longer mentally incapacitated, your power of attorney can state that it terminates that that point. You can also revoke it at any time you choose to as long as your 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.
An attorney-in-fact and an executor are two different things. 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.
If you have a durable power of attorney for finances, the court may see no need to appoint a conservator that would handle your financial matters. However, the court may still find that a conservator over your personal matters is necessary.
Health care proxy. A health care proxy is similar to a power of attorney. 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 following 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. 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, IV or tubal nutrition and hydration, CPR, electric shock therapy, antibiotics, surgical procedures, dialysis, organ transplantation and blood transfusions.
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 in a coma with no hope of recovery, 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 agent the authority to donate your organs and tissues. This means that you can allow your agent to authorize the donation of your organs and tissues without limitation, or you can give more limited authority and specify which organs and tissues you want donated.
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)
You should know that while agent's decisions are meant to be final, they are not necessarily final. If a family member or the health care facility objects to your decision and obtains a court order, your proxy's decision will be put on hold until a judge listens to arguments on both sides and makes a decision.
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. Because of the significant amount of responsibility that person 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. The person should be someone who you know will respect your decisions even if that person 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 a 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 are disqualified from serving as a witness. N.Y. PBH. LAW § 2981
Living Will. Having a living will is another way to avoid a count appointed conservatorship. A living will is a legal document in which you state your preferences regarding your medical care in the event you become mentally incapacitated and are terminally ill. Living wills detail the type of medical treatment and life-sustaining measures you want or do not want when you are near the end of your life. For example, your living will might specify whether or not you would like your life artificially prolonged by the use of mechanical breathing equipment such as a ventilator. It might also specify the types of resuscitation efforts you would like medical staff to take in the event that your heart stops beating, such as CPR or the use of a defibrillator. Or, you can include a "do not resuscitate" instruction, allowing you to die naturally. A living will can also indicate your wishes regarding the type of nutritional and hydration assistance you desire, including whether you want to receive nutrition and hydration intravenously or through a feeding tube.
You can also include additional specifics about your healthcare, such as whether you would like to receive antibiotics or pain relief medication. If you have particular preferences about organ donation, you can document them in your living will. In the absence of specific instructions regarding organ donation, New York law provides a list of who is authorized to consent to organ donation on your behalf.
A comprehensive estate plan will not only prepare you and your family in the event you become incapacitated due to an illness or accident so that court will not have to intervene, it will also make sure that your goals are achieved once you pass away. Important documents that you should consider including in your estate plan include a living will, health care proxy, durable power of attorney for finances, a last will and testament, and one or more trusts. To learn more about steps you should take to avoid the possibility of conservatorship, as well as steps you should consider to ensure your wishes are followed in the event you become incapacitated, contact Stephen Bilkis & Associates, PLLC. 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.