Suffolk County Conservatorships Lawyer

The effects of aging, a serious illness or a terrible accident may result in you becoming so incapacitated that you are unable to manage your own affairs. Of course none of us want to think about this ever happening. On the other hand, it is a good idea to plan ahead just in case it does happen. To plan for this possibility it is a good idea to have estate planning documents such as an advanced health care directive or power of attorney already set up so that both your financial and healthcare affairs are managed according to your wishes. In the absence of such documents the court may step in and place you in a conservatorship. A conservatorship is a legal arrangement that gives someone the court-ordered authority and responsibility to manage another adult's affairs, including his or her finances and medical care. NY MHY LAW § 81.06. 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 Suffolk County Conservatorships Lawyer who will be able to help you develop a comprehensive estate plan consistent with your goals.

Conservators

When the court is charged with naming a conservator, it will determine who is the most qualified. Typically the court will seek to appoint a family member. However, if no family member is will, able or qualified to serve, the court may appoint a professional conservator who is a stranger. The conservator will remain in place as long as the court determines that he or she 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 conservatorship. NY MHY LAW § 81.36. Otherwise, a conservatorship will remain in place until the person under the conservatorship passes away.

A conservator can be appointed to take care of your medical care and you personal care or to handle your finances. If you are capacitated a conservator will likely be appointed to handle both. Referred to as a "conservator of the person," a conservator who is appointed to make decisions about your personal well-being will make decisions about your medical treatment, housing, and other aspects of your personal care. If necessary, the conservator may decide that it is in your best interest to live in an extended care facility or a group home. On the other hand, if you have a living will or a durable power of attorney, it would detail your instructions on your care in the event you become incapacitated, including who will serve as your guardian.

A "conservator of the estate" makes decisions about your finances. The conservator will manage your assets, pay your bills, make investments, and collect income. The court will require the conservator of the estate to keep detailed financial records and regularly report to the status of your finances. Using advanced planning, you can execute a springing durable power of attorney to appoint someone you trust to handle your finances should you become incapacitated.

Conservator Appointment Process

After a petition is filed requesting that the court 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 required the judge will make that appointment. The State of New York has rules as to preferences for who 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 out of your estate.

While a conservatorship may not seem like the best alternative, there are some positive aspects to a conservatorship. Because conservators are supervised by the court, it is less likely that your estate's assets will be mismanaged or that you will be taken advantage of in some other way. 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.

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.

Avoiding Court Appointed Conservatorships

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 (AHCD). With an AHCD you can give detailed instructions about your healthcare wishes in a living will as well as appoint an attorney-in-fact on a durable power of attorney to make healthcare decisions on your behalf.

Durable Power of Attorney.

A power of attorney allows you give another person called your "agent" or "attorney-in-fact" authority to make decisions for you with respect to healthcare or financial matters. Generally, a power of attorney becomes invalid 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. However, like other types of powers of attorney it will terminate upon your death. NY GOB LAW § 5-1501A. A durable power of attorney can give very broad or very specific powers to your attorney-in-fact. In drafting your durable power of attorney you can decide the amount of power you grant your attorney-in-fact. With a durable power of attorney for financial matters, examples of authority you could grant your attorney-in-fact include:

  • Pay your household bills such as your utility bills or credit card bills
  • Manage your property such as making sure it is secure and paying your mortgage
  • Pay your federal and state income taxes
  • Manage your bank accounts and other financial accounts
  • Run your small business
  • Hire professionals on your behalf such as an accountant or attorney
  • Collect your government benefits such as Social Security and Medicare

With a durable power of attorney for healthcare, examples of authority that you could grant your attorney in fact in with a durable power of attorney for health care include:

  • Consent to specific treatments such as dialysis or blood transfusions
  • Consent to specific life prolonging procedures such as a CPR or a feeding tube
  • Donate your organs and tissue
  • Become your guardian (so that a conservator would not have to be appointed)

You can nominate one person to serve as your attorney-in-fact for both your finances as well as for your health care. However, it is important to make sure that your attorney-in-fact is qualified to fill both roles. Otherwise, it may be a good idea to name more than one person. For your finances you, particularly if you have a large or complicated estate, you could give your power of attorney to a company. In both cases the person or company you name in the durable power of attorney must act in your best interest and not in his or her own interest.

If you decide that you need to terminate the power of attorney, you must give notice to the attorney-in-fact. 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 attorney-in-fact dies or becomes incapacitated. NY GOB LAW § 5-1511.

Upon your death, the winding up of your affairs and administering your estate is the job of the executor named in your will. If you want the person who you name as your attorney-in-fact in your durable power of attorney to also handle your affairs after your pass away, you must also name that person in your will as your executor.

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 wishes about the types of medical care you do or do not want if you become incapacitated and are unable to speak for yourself. Living wills detail the type of medical treatment and life-sustaining measures you want or do not want. 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 be fed intravenously or through a feeding tube in your stomach.

You can also include additional specifics about your healthcare, such as whether you would like to receive 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.

Other important estate planning tools

In addition to having a durable power of attorney and a living will, it is also important to have a will and perhaps a trust.

A will is the most common type of estate planning document. It is a legal document that sets forth your wishes regarding the distribution of your assets and the care of any minor children upon your death. There are several different types of wills including a joint will, mutual will, holographic will, nuncupative will and codicil. Holographic and nuncupative wills are generally invalid in New York, with a few very limited exceptions. A codicil is not a will, but an amendment to a previously executed will.

A trust is a fiduciary relationship in which you give another party, the trustee, the right to hold title to property or assets for the benefit of a third party, referred to as the beneficiary. While trusts are not as common as wills, some types of trust have advantages over wills in that they do not have to through probate and they provide estate tax savings.

A comprehensive estate plan does not only include documents that will ensure that your property is properly distributed upon your death, it will also prepare you and your family in the event you become incapacitated due to illness or accident. Documents that you should consider having in your estate plan include a durable power of attorney, living will, last will and testament, and trust. 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 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations:

CONTACT US FOR A FREE CONSULTATION
1.800.NY.NY.LAW (1.800.696.9529)