2014-03-14 / Columnists

Spotlight on Elderlaw:

Guardianships & How to Avoid Them
By Deidre M. Baker, Esq.

An unfortunate reality for many families is that there will come a time when a loved one will no longer be able to manage his affairs. When an individual is alleged to be incapacitated because he or she is no longer able to provide for his own needs, and that person cannot adequately understand the consequences of his inability to do so, the court may appoint a guardian to act on his or her behalf.

The appointment of the guardian signals that the court has taken away the ability of the incapacitated person to make certain decisions and the guardian is now responsible for actions ranging from paying the incapacitated person’s bills to deciding whether or not placement in a nursing home is appropriate.

There are varying degrees of guardianship and each alleged incapacitated person’s proceeding is designed so that the specific powers of the guardian are tailored to the needs of the individual who has become incapacitated. For example, the court may determine that while an individual is unable to manage his or her finances, he is perfectly capable of taking care of personal needs such as bathing, dressing, and cooking.

The guardianship proceeding is a matter of public record, can be timeconsuming, and involves court and legal fees. Additionally, in the petition, and other related court filings, the person seeking to be appointed guardian must specify why the person alleged to be incapacitated can no longer take care of themselves.

While a guardianship proceeding is generally initiated by a friend or family member, in theory, anyone can seek to be appointed the guardian of another person. This can be a concern for families who have elderly loved ones out of state. There are legal solutions and steps that can be taken which can help obviate the need for the lengthy and expensive and public process of guardianship in the event that you become unable to make your own decisions. Through the use of documents known as “Advance Directives,” one can appoint trusted agents (representatives) who will act for him if he later becomes incapacitated.

Completion of a health care proxy authorizes a competent person to appoint an agent, as well as a successor agent, who can make medical decision on his behalf if he is no longer able to speak for himself. An accompanying document, called a living will, memorializes instructions related to your medical care. This provides your agents a set of directives when making medical decisions, for example, not allowing the use of artificial nutrition.

A New York State Power of Attorney allows you to appoint one or multiple people to represent you in financial transactions. These agents may act on your behalf out of necessity (if you can no longer act) or convenience (because you’re out of town). The important thing to remember is no one can override your wishes so long as you are legally competent to make your own decisions.

While it is difficult to think about the possibility that there will come a time where we cannot make decisions for ourselves, by doing appropriate and simple planning, it is very easy to avoid problems down the road and ensure that your wishes are being carried out by those who love you.

Deidre M. Baker is an associate attorney with the law firm of Brady & Marshak, LLP. The attorneys can be reached at (718) 738-8500.

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