and Your Family
Nassau County Conservatorships
A conservatorship is a legal arrangement in which New York Surrogate’s Court or the New York Supreme Court appoints someone to take care of the personal and/or financial affairs of another person. While the term “conservatorship” is used in other jurisdictions, New York uses the term “guardianship.” The person who is appointed to care for the other person is referred to as the “guardian,” while the person under the guardianship is referred to as the “ward.” A guardianship is warranted when someone does not have the ability to take care of himself. For example, a guardianship may become necessary if a person becomes mentally incapacitated and is unable to make his or her own decisions. The guardian may be given power to make decisions about the ward’s health care, finances, or both. If the ward executed instructions in an AHCD for his (or her) care prior to becoming incapacitated, then the guardian’s decisions will be based on those written instructions. To learn more about guardianships, how to avoid one, and to make sure that your wishes are known should you ever become mentally incapacitated, contact an experienced Nassau County conservatorships lawyer at the Law Offices of Stephen Bilkis & Associates who will help you with your concerns related to a guardianship, planning for incapacity, and related estate matters.Guardianships
A guardianship is necessary when someone becomes mentally incapacitated, mentally ill, or has an intellectual disability. Examples of conditions that might require the establishment of a guardianship include Alzheimer’s, traumatic brain injury, Wernicke-Korsakoff syndrome, or a severe brain injury. The court will only place someone in a guardianship if there is evidence that the person does not have the ability to make personal and/or financial decisions for him or herself. There are also circumstances in which minors are appointed guardians. Minors whose parents are unable to care for them or who inherit more than $10,000 may need a guardianship as described in New York Surrogate's Court Procedure Act § 1701.
New York Mental Hygiene Law § 81.02 authorizes the court to appoint a guardian when the following conditions are met: (1) appointing a guardian is necessary to provide management for someone else's financial or property affairs, or their personal needs, and (2) the person agrees to this appointment or is incapacitated. A guardianship is initiated when someone such as a spouse, parent, adult child, other relative, or employee of an agency files a petition with the court asking the court to appoint a guardian. The judge will review evidence as to the person’s condition. If based on findings related to the person’s mental capacity the judge determines that a guardianship is necessary the judge will make that appointment. Under New York law the court must specifically find that the purportedly mentally incapacitated person is indeed mentally incapacitated if he (or she) does not agree to the guardianship. The judge must consider a person's functional level and restrictions, and must evaluate whether the person is able to handle his own activities for daily living. A Nassau County conservatorships lawyer can explain the details as to how a court makes a determination of whether someone should be become a ward.
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 in the ward’s best interest, the court will appoint someone other than a blood relative such as a family friend or even a public or professional guardian.Types of guardians
Under New York law there are two general types of guardianships: guardian of the person and guardian of the estate. Guardians can be appointed pursuant to New York Mental Hygiene Law because a person has become mentally incapacitated, or under the New York Surrogate's Court Procedure Act because the person has an intellectual disability. In addition, guardians can be appointed over minors when the parents are not available to take care of all of the minor’s needs.
A guardian of the person is appointed to take care of the ward’s personal needs. He (or she) would be responsible for determining where he guardian would live, including arranging for placing the ward in a facility, if appropriate. For a minor ward, the ward may live with the guardian. A guardian of the person would be responsible for providing for the health care need of the ward and protecting him. He would also be responsible for caring for the ward’s every day needs such as food and clothing.
On the other hand a guardian of the estate has the authority to make decisions about the individual’s finances and property. The guardian would pay the ward’s bills, care for his investments, and management benefits such as Social Security disability.
Even though guardians have broad decision making power over the ward’s affairs, their power is not unlimited. The approval of the court is necessary before the guardian can finalize certain decisions such as selling the ward’s real estate, retaining an attorney, and making any usual expenditures such as large expenditures. If you have questions related to the authority of a guardian, contact an experienced Nassau County conservatorships lawyer.Alternatives to guardianships
The best way to avoid a court appointed guardianship is to plan in advance. Through advance planning you can appoint someone to take care of your heath care and finances if you ever become incapacitated.
Advance heath care directive. An advance health care directive is a set of documents that helps ensure that your wishes are followed should you become incapacitated. An advance health care directive, also referred to as an AHCD, commonly includes a living will and a health care proxy. As an experienced conservatorships attorney in Nassau County will explain, a health care proxy allows you to give another person the authority to make healthcare decisions for you should you become mentally incapacitated. The living will allows you to memorialize the type of medical care you would like to receive should you be unable to speak for yourself.
Durable power of attorney for finances. With a durable power of attorney you can give a trusted person the authority to take of your finances should you become incapacitated.Contact the Law Offices of Stephen Bilkis & Associates
The best way to avoid a court appointed guardianship is to plan in advance. An experienced conservatorships attorney serving clients in Nassau County will explain how 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 will, trusts, living will, powers of attorney, advanced health care directives, as well as other tools. To learn more about steps you should take to avoid the possibility of guardianship contact 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: Manhattan, County, Suffolk County, Queens, Bronx, Brooklyn, Long Island, Staten Island, and Westchester County.