Guardianships for the elderly: An opportunity to take control of your future

Guardianships can provide individuals with the power to determine who makes decisions on their behalf in the event of incapacitation.

Guardianships are often viewed as something young families use to help ensure their children are cared for in the event of a tragic accident. However, these documents can also be a powerful tool for the elderly or those facing serious illnesses. Guardianships essentially allow for a person to decide who will be able to make decisions on their behalf in the event that they are no longer able to communicate their wishes.

Those who take the time to put together a health care proxy and power of attorney can choose who will serve as their agents for decision making both financially and medically. Those who do not establish have these documents in place in essence leave this decision up to the court.

Guardianship and court involvement

A court can appoint a guardian in New York under state law when two elements are met. First, it must be determined that the appointment is necessary to provide for the personal needs of the person in question and/or to manage the property and financial affairs of the person, or both. Second, the person requiring guardianship either agrees to the appointment or the court determines the person is incapacitated and needs the guardianship. Incapacity is determined by establishing two findings:

• The person is likely to suffer harm because the person is unable to provide for personal needs or unable to manage property and financial affairs; and
• The person cannot adequately understand and appreciate the nature and consequences of such inability

Once it is determined that a guardian is needed, the law also provides guidance over how the court should determine who should serve as a guardian. Essentially, it states that the court should attempt to tailor a guardianship for each situation.

Petitioning for guardianship

If petitioning for the guardianship of a loved one, the process begins by filing the petition with the court. The petition states the personal and/or property management needs of the person who is incapacitated and describes how these needs have not been addressed. The person is notified that a petition for guardianship has been filed and this person can participate in the process. In some cases, the Court will appoint an attorney for the alleged incapacitated person.

A judge will review the information and any testimony given before making a final determination. This determination will address both the nature and extent of the incapacities. If the judge rules in favor of the petition, it will name the guardian and authorize the named guardian to take action on behalf of the person in question.

Proactive steps to manage your care

A recent case provides an example of the benefits of establishing a guardianship. It involves a contested guardianship for a man who suffered from dementia. The man did not establish a guardianship and, as a result, his sister and cousin were at odds with the man’s estranged wife over who should have guardianship. The issue revolved around both the man’s personal well being and access to his assets. The man’s mental condition was deteriorating, as he was not compliant with his medication regiment. The matter was highly contested and involved great acrimony amongst the parties and was conducted at great cost to the individual. At the commencement of the trial, the parties eventually agreed and settled the contested Guardianship to permit the cousin to be a co-Guardian together with a Court appointed attorney.

Proactive measures can be taken to avoid situations like this and to help ensure that you receive a desired agent in charge of your personal and financial matter instead of having loved ones battle in court for your well being. A power of attorney and health care proxy can be put in place at a very low cost to become active in the event that you become incapacitated, seriously injured or suffer from an illness. This step can remove the court from making this decision on your behalf. Contact an experienced estate planning attorney to discuss how legal tools can be used to help better ensure the protection of your future and avoid guardianships.