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New York Conservatorships

Whether it is due to age, an illness, or an accident, there may come a time when you are not able to manage your own affairs. Even though it may be uncomfortable to think about such a possibility, it is wise to plan for it. To plan for this possibility, it is a good idea to have estate documents in place such as an advance health care directive, trust, and durable power of attorney for finances in place so that both your financial and health care affairs will continue to be managed according to your wishes. In the absence of such directives, in New York the court may step in and place you in a guardianship. Sometimes referred to as a conservatorship, a guardianship involves the court appointing someone to manage your affairs, including your finances and medical care. The person appointed is referred to as a guardian. To learn more about New York’s law related to guardianships and how you can plan in advance for incapacity, contact a seasoned New York conservatorships lawyer at the Law Offices of Stephen Bilkis & Associates who will help you develop a comprehensive estate plan that includes documents that will protect your interest in the event you should become mentally incapacitated.

Types of guardians

In general, a court will appoint a family member to act as your guardian. Under New York Mental Hygiene Law section 81.19, in order to be eligible to serve as a guardian, you must be at least 18 years old, unless you are the parent of the ward. If you are, the minimum age requirement is waived. However, if there is no suitable family member available, the court may appoint a stranger such as a non-profit organization or social services organization. The guardian will remain in place as long as the court determines that a guardian is needed. 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, guardianships remain in place until the ward pass away.

A guardian can be appointed to take care of your finances or to take care or your day-to-day well-being. In many cases, particularly if you are incapacitated, a guardian is appointed to handle both your finances and your well-being. 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 housing, health care, and other aspects of your personal care. If necessary, the guardian may decide that it is in your best interests to live in an extended care facility or a group home. On the other hand, if you have a health care proxy that was executed with the help of an experienced New York conservatorship lawyer, then a health care agent of your choosing would have the authority to care for your affairs and the guardianship process would not be necessary.

A "guardian of the estate" makes decisions about your finances. He or she 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 court about the status of your finances. Using advance planning, you can execute a durable power of attorney for finances to appoint an agent you trust to handle your finances should you become incapacitated.

Guardian appointment process

To start the guardianship process someone will file a petition with the court asking the court to appoint a guardian over you. The judge will review evidence as to your condition. If based on your mental capacity the judge determines that a guardianship is necessary the judge will make that appointment. 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.

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. In addition the guardian will be reimbursed for expenses. The guardian's fees and expenses will be paid from the assets of your estate.

While a guardianship may not seem like the best options, there are some positive aspects to a guardian ship. Because guardian s are supervised by the court, it is less likely that your estate's assets will be mismanaged or that you will be otherwise taken advantage of. 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 guardian ship will end when the court issues an order ending the guardian ship because the ward passed away or the ward’s condition improves such that a guardian is no longer needed.

Avoiding court appointed guardians

An experienced New York conservatorships lawyer will explain, the best way to avoid a court-appointed conservatorship and to make sure your wishes are followed is to have a health care proxy and a durable power of attorney for finances.

Durable power of attorney for finances. A power of attorney for finances allows you grant to another person, known as your "agent" or "attorney-in-fact" power to act on your behalf with respect to financial or healthcare matters. Typically, a power of attorney terminates 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 durable. A durable power of attorney remains in effect even if you become incapacitated, but as with other types of powers of attorney will terminate upon your death. A durable power of attorney can give very broad or very specific powers to the attorney-in-fact. In drafting your durable power of attorney you have a great deal of flexibility in granting and limiting the power of your attorney-in-fact. For example, with a durable power of attorney for financial matters, you can grant your agent the authority to:

  • Pay your everyday expenses such as your utility bills
  • Manage your property
  • Pay income taxes and real estate taxes
  • Manage your bank accounts and brokerage accounts
  • Run your small business for you
  • Manage your retirement accounts
  • Hire professionals on your behalf such as an accountant or attorney
  • Collect your government benefits such as Social Security and Medicare

If you decide that you need to terminate the power of attorney, you must give notice to the agent. You can revoke a durable power of attorney any time you choose to as long as you are competent. Revocation of a durable power of attorney occurs automatically if you die, the purpose of the power of attorney is accomplished, or the agent dies or becomes incapacitated. NY GOB LAW § 5-1511.

Health care proxy. When you execute a health care proxy, you appoint someone to serve as your agent with respect to health care matters. Your health care agent can only act if you have been determined by your doctor to be incapacitated such that you cannot make decisions for yourself. In other words, a health care proxy is a durable power of attorney for health care. With a durable power of attorney for healthcare, you can grant your attorney-in-fact the authority to:

  • Consent to or refuse particular treatments such as dialysis, surgery, or blood transfusions
  • Consent to or refuse life extending procedures CPR or a feeding tube
  • Consent to or refuse antibiotics and other drugs
  • Consent to or refuse palliative care
  • Donate your organs
  • Become your guardian
Executor vs guardian

The role of the executor you nominated in your will is to manage your estate once you pass away. Your executor does not automatically get to serve as you health care agent, attorney-in-fact, or guardian. If you want the person who you name as your agent in your durable power of attorney to also handle your affairs after your pass away, discuss with a skilled conservatorships attorney in New York how to updated your estate documents to reflect your wishes.

Contact the Law Offices of Stephen Bilkis & Associates

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. You personal estate plan may include a last will and testament, trusts, living will, powers of attorney, an advanced health care directive, as well as other tools. To learn more about steps you should take to prepare your estate in event of your incapacity, avoid the possibility of conservatorship, contact a skilled conservatorships attorney serving New York 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) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Queens, Westchester County, Nassau County, Suffolk County, Manhattan, Bronx, Brooklyn, Long Island, and Staten Island.

Client Reviews
★★★★★
Mr. Bilkis handled both my father and mother's estate issues through very difficult times he was compassionate kind and understanding. In fact the whole firm showed great empathy. Despite the emotional hard time we were having that quickly and efficiently handle all the matters that were necessary to get us the result we desired. Can't recommend them enough. B.B.
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