It is not uncommon to have family members who have exhibited signs of dementia or Alzheimer ’s disease or have become incapacitated due to a stroke or other medical problems.
During such trying times, individuals often seek the advice of an elder law attorney in an effort to plan. Part of that planning may include execution of documents that will allow a family member(s) to handle the financial and medical affairs of the ill relative.
It is always better to execute documents in advance of becoming ill if the individual is able to express a desire to appoint an attorney-in-fact and a health care agent. Without a durable power of attorney, no other person has the authority to access an incapacitated person’s funds.
In instances where an individual does not have the capacity to appoint a power of attorney/health care agent, it is necessary to initiate a proceeding to appoint a guardian for the “allegedly incapacitated person” (AIP).
Guardianship proceedings are governed by Article 81 of the Mental Hygiene Law, which states that “the determination of incapacity shall be based on clear and convincing evidence … that a person is likely to suffer harm because [he/she] is no longer able to provide for personal needs and property management and cannot
adequately understand and appreciate the nature and consequences of such
inability.”
The proceeding is typically brought in the Supreme Court (New York State’s lowest court) in the county in which the AIP resides or is physically present. A proceeding may be initiated by the AIP himself/herself; a distributee or beneficiary of the AIP’s estate; an executor of the AIP’s estate; trustee of a trust of which the AIP is a beneficiary or grantor; a person with whom the AIP lives; someone who is concerned with the welfare of the AIP; or the administrator of a facility in which the AIP resides.
The AIP and all interested parties must get notice that a proceeding has been commenced. The notice is in the form of a Petition and an Order to Show Cause why a guardian should not be appointed for the AIP. The Petition and Order are served upon the AIP and all interested parties, who include the spouse, parents, children, siblings and person(s) who live(s) with the AIP. Once the AIP receives notice, he/she has the right to request an attorney.
Upon commencement of a proceeding, the judge appoints a “court evaluator,” typically an attorney whose duties include interviewing the AIP and the petitioner; determining whether the person can understand the nature and possible consequences of the proceeding and all it involves; and investigating and making a written report and recommendations to the court.
This is just the beginning of the Guardianship process. Our next article will discuss the guardianship hearing, the implications of a contested proceeding, the responsibilities of a guardian or co-guardians and other aspects of the process.
Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts and wills. The firm has offices in Forest Hills, Great Neck, Manhattan, Brooklyn and Cedarhurst, NY. Fatoullah has been named a “fellow” of the National Academy of Elder Law Attorneys and is a former member of its Board of Directors. He also serves on the Executive Committee of the Elder Law Section of the New York State Bar Association. Fatoullah has been Certified as an Elder Law Attorney by the National Elder Law Foundation. Fatoullah is a co-founder of Senior Umbrella Network of Queens. This article was written with the assistance of Stacey Meshnick, Esq., who supervises the Medicaid Department at the firm. The firm can be reached by calling 718-261-1700, 516-466-4422 or toll free at 1-877-ELDER-LAW or 1-877-ESTATES.
