and Your Family
Westchester County Conservatorships
If you are an adult but due to aging, an illness, or an accident are able to manage your own affairs, then someone will have to manage your affairs for you. While none of us wants to think about this ever happening, it is a good idea to plan ahead just in case it does happen. To plan for this possibility it is important to have a comprehensive estate plan that includes not only a will, but also an advance health care directive and durable power of attorney 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. In New York a conservatorship is referred to as a guardianship. 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 skilled Westchester County conservatorships lawyer who will be able to help you develop a plan for incapacity that is consistent with your beliefs and goals.Guardians
When the court is charged with naming a guardian, it will determine who is the most qualified. Typically the court will seek to appoint a family member as guardian. However, if no family member is willing, able, or qualified to serve, the Surrogate’s Court may appoint a professional guardian who is a stranger. The guardian 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 guardianship. NY MHY LAW § 81.36. Otherwise, a guardianship will remain in place until the person under the guardianship passes away.
As an experienced Westchester County conservatorships lawyer will explain, a guardian can be appointed to take care of your medical care and you personal care or to handle your finances. If you are incapacitated a guardian will likely be appointed to handle both. 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 medical treatment, housing, and other aspects of your personal care. If necessary, the guardian 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 an advanced health care directive that includes health care proxy and living will, then you would have appointed someone in advance to make health care decisions for you. You would have also left details as to what types of treatments you would prefer to receive.
A "guardian of the estate" makes decisions about your finances. The guardian 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 status of your finances. As an experienced Westchester County conservatorships lawyer will explain, using advanced planning you can execute a durable power of attorney to appoint someone you trust to handle your finances should you become incapacitated.Guardian appointment process
After a petition is filed requesting that the court appoint a guardian over you, the judge will review evidence as to your medical condition. If based on your mental capacity the judge determines that a guardianship is required 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. In all likelihood, however, a relative will be appointed. 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 out 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. To learn more about the guardian appointment process, contact an experienced Westchester County conservatorships lawyer.Avoiding guardianships
The best way to avoid a guardianship and to make sure your wishes are followed is to have an advance health care directive (AHCD) and a durable power of attorney. 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.
Advance health care directive. An AHCD is made up of two documents: a health care proxy and a living will. With a health care proxy you appoint another person to serve as your health care agent. This person will have the authority to make health care decisions for you should you become incapacitated. You can give your health agent broad authority to make health care decisions for you, or you can be very be very specific as to what your agent should authorize under various circumstances. If an issue is not addressed in your health care proxy or living will, then your health care agent will have the authority to make the decision.
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.
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 your 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
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. As an experienced conservatorships attorney in Westchester County will explain, 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.Contact the Law Offices of Stephen Bilkis & Associates
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, health care proxy, living will, last will and testament, and trust. To learn more about steps you should take to avoid the possibility of guardianship, as well as steps you should consider to ensure your wishes are followed in the event you become incapacitated, contact an experienced conservatorships attorney serving Westchester County 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 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Westchester County, Queens, Long Island, Bronx, Suffolk County, Staten Island, Nassau County, Brooklyn, and Manhattan.