In an ideal situation, all competent adults would sign advanced directives such as a Durable Power of Attorney or Health Care Proxy well before it is needed. Doing so permits their choice of agent to make business and/or health care decisions in the case of incapacity. However, when an adult loses capacity due to an accident, sudden illness, mental illness, or dementia and there is no advanced directive in place, a family member may need to seek guardianship. The same holds for an individual who has a developmental disability and was never able to sign documents in the first place.

When a trusted family member or friend is appointed guardian, he or she becomes the legal decision maker. At Pierro, Connor & Strauss, our guardianship lawyers have experience helping clients living in Albany, New York City, and many other communities across the state with these matters. If you reach out to us, we’ll be more than happy to start going to work for you.

What is a guardianship?

A guardianship is a legal relationship in which one person is appointed by a court to make decisions for another person who is unable to act on their own behalf. The person appointed to make decisions is referred to as the guardian, while the person for whom they make decisions is known as the ward.

A guardian must be at least 18 years old, and a criminal record may be a disqualifier. The ward must lack the capacity to make their own decisions. This incapacity may be due to:

  • Age when the ward is 17 years old or younger
  • Incapacity such as caused by severe illness or injury
  • Intellectual or developmental disability

Before appointing a guardian, a court will want to see proof of the alleged incapacitated person’s (AIP) incapacity. The court will appoint an evaluator and possibly an attorney to represent the proposed ward. The court will hear evidence regarding their condition and ability to make decisions. The proceedings often need to strike a delicate balance in the quest to obtain important information while respecting the alleged incapacitated person’s right to privacy.

Guardianship Team
Aaron E. Connor, Esq.
Aaron E. Connor
Peter J. Strauss
Robert Bosman

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Woman kissing her 90 year old mother who sits in couch

Capacity in Guardianship

Planning for the future by creating the necessary legal documents will empower someone that the incapacitated person chose to make financial and personal decisions for them in case one day they lose the capacity to act for themselves. Individuals can appoint agents to manage their property (usually under a power of attorney or as trustee of a “living trust “) or make health care decisions under a health care proxy, guided by the person’s instructions and wishes set forth in a health care declaration (“living will”).

But suppose a person does not have these “advance directives” and can no longer speak for themselves? It is in these cases where a guardian, or conservatorship in some states, is appointed for that person. A court appoints an “agent” to manage the life of the person that has been declared incapacitated.

The Basic Legal Directives in Guardianship

Health Care Proxy: Also known as a durable power of attorney for health care, the health care proxy (HCP) designates a an agent ahead of the time that it is necessary to make decisions on your behalf. The form designates someone else to make sure that the desires you have expressed — in your health care declaration (HCD), or “living will”, or otherwise — are completed to make health care decisions on your behalf, if:

  1. you’re not capable
  2. don’t have a HCD
  3. or for things not anticipated in your HCD

Health Care Declaration (“Living will”):

The health care declaration states your desires concerning future medical care, specifying what you want and don’t want to happen to you. This type of declaration is also referred to as health care directives, medical directives, or instructional directives.

Medical Order about Life Sustaining Treatment (MOLST):

The MOLST is a form authorized by state law in several states prepared by a physician, nurse practitioner, or physician assistant working with the patient. It is a detailed sheet that outlines the patient’s wishes about very specific treatments and procedures. This form is usually filled out for the terminally ill. The MOLST document provides additional desires of the patient that the health care declaration or health care proxy does not contain and may guide the agent’s decision if there is no clear decision previously made by the patient. The MOLST does not replace HCP and the HCD documents.

Do Not Resuscitate Order (DNR):

This is a physician’s or nurse practitioner’s instruction that states “do not resuscitate” if the patient’s heart or breathing stops. It is a form signed by a patient of capacity or by the health care agent when the patient lacks capacity to give informed consent.

Guardianship FAQs

How is Incapacity Defined?

It is difficult to determine the extent of a person’s incapacity but the current endorsed measure of capacity is a person’s understanding of a specific decision of task. For example, someone with Alzheimer’s may understand the treatment being provided and the effects.

Guidelines for Capacity – Based on the Rule 1.14 of the New York Code of Professional Responsibility and Court Decisions

  1. The client understands the need for assistance in making treatment decisions at the present time or in the future
  2. The client’s choice of the agent is reasonable
  3. The client’s choice is consistent with his or her history of prior choices and lifetime decisions
  4. The client can articulate the reasoning underlying his or her choice
  5. The client can appreciate the consequences of the execution of the proxy

Does a guardian make financial decisions, health care decisions, or both?

There are two types of guardianship. A court may appoint a guardian for property management. This person has the power to make financial decisions. The court may also appoint a guardian for personal needs. This person has the power to make decisions about personal care, including healthcare and end-of-life decisions. The court may appoint the same person for both roles or they may appoint a different person for each.

Who can serve as a guardian?

In New York, any adult can serve as a guardian. However, a corporation, social services department, or public agency may also serve.

Broadly, “anyone who is concerned with the welfare” of the alleged incapacitated person may initiate a guardianship case. In addition to close family or friends, it can also include the director of a care facility in which the person resides. In some cases, the court may even appoint an independent guardian who is often an attorney. Courts prefer to appoint family members, and when a more distant individual or corporation is appointed, their powers can be limited.

How do I start a guardianship proceeding?

The process depends on the type of guardianship needed. Guardianships for individuals with developmental disabilities or traumatic brain injury fall under Article 17-A of the Surrogate’s Court Procedures Act. Guardianships for other types of incapacity fall under Article 81 of the Mental Hygiene Law.

In either case, a potential guardian must apply to the court, and the process for evaluating the need depends on the act under which the guardianship falls. The scope of decision-making authority is also affected by which section the guardianship falls under.

How do you choose a guardian?

Ordinarily, families will look to trusted family members, friends, or other professionals in their lives. In general, New York does not have public guardians, though local Departments of Social Services are occasionally appointed as guardians when there are no family members available.

NYSARC may also act as guardian for individuals with developmental disabilities who are involved with the county chapters.

Do I need a guardianship attorney?

An attorney may not be a formal requirement, but it is often a good idea. The guardianship process can be long, technical, and contested. Choosing an attorney who has extensive experience in the guardianship process can improve efficiency and provide peace of mind when it comes to complying with legal requirements and fiduciary duties.

What is the difference between an Article 17-A and an Article 81 guardianship?

They differ based upon the types of disabilities involved with each, the formality and complexity of the proceeding, the types of powers a guardian could receive, and the cost.

Article 17-A: This proceeding is only for individuals with developmental disabilities or traumatic brain injuries who are over the age of 18. The pleadings are more straightforward and there are fewer professionals involved. But, the law is a black and white plenary guardianship. This means the guardian has very broad powers which cannot be tailored to the individual needs of the person in need of the guardianship. Because the pleadings are more straightforward and, in general, it is a more informal proceeding, the fees for an Article 17-A guardianship are far less than an Article 81 guardianship.

Article 81: This proceeding can be used for individuals of any age and with any type of disability, including mental illness or dementia. The pleadings are more complex because the attorney must prove that the alleged incapacitated person (AIP) has functional limitations, does not understand and appreciate the functional limitations, and may be in physical or financial jeopardy of harm due to these limitations. Further, the guardian’s authority is tailored to the specific needs of the AIP and there are many more professionals involved in an Article 81 guardianship. Therefore, this is a costly proceeding.

Speak with an Albany or New York City guardianship lawyer

If you have a family member or friend who needs someone to assist with making financial or health care decisions, schedule a consultation with one of our elder law attorneys. We can review your situation to determine if a guardianship is the right legal solution. Contact Pierro, Connor, & Strauss, LLC today to schedule a confidential consultation.

We offer a complete slate of elder law services

Our team has extensive knowledge and experience in guiding and advising elder clients and their families on:

  • Estate Planning
  • Wills, trusts, and succession planning
  • Long-term care planning/Medicaid planning
  • Competency, Guardianship, and Advanced Directives
  • Health care discharge planning and senior housing advocacy
  • Geriatric care management
  • Income, estate, and gift tax planning
  • Business planning as it pertains to obtaining government benefits

    i.e. Medicare Benefits, Veteran’s Benefits, and more

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