guardianship: a last resort

When a spouse or a parent begins to show signs of dementia or other memory problems, what are your options to help care for them? One option is provided under Article 81 of New York’s Mental Hygiene Law, which creates a legal relationship between a court appointed guardian and a ward. A ward is a person who agrees to the appointment of a guardian or is determined by the court to be incapacitated.

The court may make a determination of incapacity of a person who is unable to attend to their own activities of daily living (bathing, self-care, dressing, etc.). A determination of incapacity may also be made for someone who lacks an understanding of their assets and debts, or is unable to manage their own property. Guardianship is tailored to meet the specific needs of the incapacitated person for whom guardianship is being sought. Article 81 creates two types of guardianship: of the property and of the person (though a guardian may be authorized to act as both).

Guardian of the Property.
A guardian appointed to manage property may be granted the authority to exercise any financial right the ward would be able to exercise on their own behalf, such as paying bills and managing investments. A guardian may also be authorized to engage in Medicaid planning to help fund the care of the ward, as well as tax and gift planning to optimize wealth protection and reduce estate taxes.

Guardian of the Person.
At times, a person may begin to neglect their own personal needs. They may fail to eat regularly, miss doctors’ appointments or forget to take medications, and lose the ability to bathe and dress themselves. The guardian may be authorized to address all these daily needs and ensure the ward has proper housing: whether in a private home or nursing home.

Who May Become a Guardian.
Almost anyone over the age of 18 may be appointed guardian. Most often, a spouse, adult child, sibling or other family member will seek guardianship of a loved one out of a desire to provide care for that family member. However, the court may appoint a non-profit organization, social services office, public agency or another professional guardianship organization to serve as guardian.

How to Become a Guardian.
The process to become a guardian begins with a petition filed with the court. The court will normally appoint a court evaluator, who will investigate the circumstances of the case. The court evaluator will interview the interested parties, including the alleged incapacitated person. Following the investigation, the court evaluator will provide a detailed report which conveys whether the appointment of a guardian is necessary.

In the event the court evaluator determines a guardian is necessary, the report will detail which authorities of the property and of the person the guardian should have. A hearing will be set to make the final determination, during which, testimony will be taken from the proposed guardian, the alleged incapacitated person and the court evaluator. The petitioner, usually the person asking to be appointed guardian, has the burden of showing clear and convincing evidence that the alleged incapacitated person is incapable of managing certain aspects of his/her personal or financial life. Any opposition to the guardianship will also be heard. A decision is normally rendered after the hearing.

Responsibilities of A Guardian.
Once appointed, a guardian must exercise the utmost care and diligence in dealing with the ward’s affairs, and must show the utmost trust and loyalty to the ward. A guardian is obligated to comply with all court orders and exercise only those authorities granted. Generally, a guardian will need to file an initial report and annual reports with the court, and visit the ward at least four times during the year.

Final thoughts. Guardianship should only be considered as a last resort, when all other options have been exhausted, and alternative means of protection, such as a Power of Attorney, are not available or do not adequately protect the incapacitated person.

Michael Giannasca and Emily D. Wilson

Michael Giannasca and Emily D. Wilson

Michael Giannasca and Emily D. Wilson are attorneys with the law firm of Giannasca & Shook, PLLC.The Elder Law & Estate Planning Group of the firm handles all aspects of Elder Law including wills & probate, trusts & estates, Medicaid planning, guardianships, estate administration and litigation, and asset protection. Locations at 1 Barker Avenue, Suite 325, White Plains, NY 10601; 914-872-6000; and at 96 East Avenue, Norwalk, Connecticut 06851; www.mgns-elderlaw.com
Michael Giannasca and Emily D. Wilson

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