Frequently Asked Questions about Guardianships

Can A Guardian Be Given The Authority To Pay The Bills For An Incapacitated Person?

This is the most common reason that guardianship proceedings are brought. Too frequently, an elderly person living in the community becomes forgetful or suffers from some mental incapacity, whatever the cause, and fails to pay essential bills such as utilities or real property taxes. The result can be devastating and even life-threatening. A court-appointed guardian can remedy this situation by obtaining the authority to collect assets, pay bills, make investments or exercise any financial right that the incapacitated person would be able to exercise if that incapacitated person had the capacity to do so.

Can A Court Appoint A Guardian to Stop Financial Abuse?

It is imperative that family and friends remain vigilant when a third-party is assisting an older adult with financial matters. Unfortunately, unscrupulous individuals take advantage of incapacitated people by fraudulently inducing them to give away their money. Occasionally, this includes close relatives who may believe that the senior citizen will be cared for in a nursing home, and no longer needs his or her life savings. An unjustified belief of “entitlement” leads some people to financially abuse the senior citizen. One common sign to be aware of is preventing the older adult from reviewing his or her own bank statements. Isolation from family and friends is also a behavior that should signal concern for the elder adult.

As part of a guardianship proceeding, a court can freeze bank accounts. A court can appoint a temporary guardian during the pendency of a guardianship proceeding to make sure that no one but the court appointee has access to the assets of the incapacitated person. A court can also authorize a guardian to commence an expedited proceeding to recover stolen assets.

How About Self-Neglect?

Sometimes incapacitated people do not provide themselves with proper medical care, creating unnecessary risk to health or life. They become incapable of taking care of their basic activities of daily living such as grooming, dressing, bathing, toileting and obtaining food. A visit to one’s house and a peak into the refrigerator may reveal spoiled food or inadequate nutrition available. Sometimes large amounts of debris accumulate in the homes of incapacitated people, either through years of collecting or failure to discard. A guardian can be given the authority to remedy these kinds of situations. The authority that can be granted by the court includes the authority to put home care in place, the authority to perform a heavy duty cleaning on the residence and, if necessary, the authority to place the incapacitated person in an appropriate residential care facility.

Can I Commence A Guardianship Proceeding To Stop Physical Abuse?

Sometimes family members or acquaintances will physically abuse an incapacitated person. Signs may include frequent bruises or other physical evidence of aggression. Seeking help from a local agency, including Adult Protective Service fo the local County Department of Social Services (for Monroe County, click here http://www.monroecounty.gov/aging-psa.php) may serve as a helpful resource and its intervention may solve the problem. You may also want to consider the appointment of a guardian who can be given the authority to take measures to stop physical abuse. These measures can include injunctions which require the abuser to refrain from certain activity, implementation of a home care plan, residential placement, the granting of an order of protection, or the granting of authority to apply to the family court for an order of protection.

Can A Guardian Can Be Authorized To Engage In Medicaid Planning?

The care of an incapacitated person can be very expensive. Significant amounts of home care or a residential placement can cost many thousands of dollars per month. It is often possible to obtain Medicaid eligibility for home care or residential facility benefits if the assets of an incapacitated person can be transferred or placed into a trust pursuant to qualified Asset Protection techniques. Under appropriate circumstances, a court can authorize a guardian to take the steps that are necessary to obtain Medicaid eligibility for an incapacitated person. Many people prefer to leave an “inheritance” for family members rather than spend it all on nursing home care. For those people, Medicaid Planning and Asset Protection is a serious consideration. But where the AIP now lacks the capacity to make those decisions, a guardian may be necessary. Some are under the mistaken belief that a power- of-attorney is enough to accomplish this goal, but the power-of-attorney may limit or even prohibit the gifting powers of the agent.

What About Tax Planning?

For incapacitated people who have significant wealth it may be advantageous for estate tax reasons to give gifts to family members while the incapacitated person is alive. A guardian can be authorized by a court to make gifts in order to reduce estate taxes.

How Long Does It Take For A Guardian To Be Appointed?

While each case is unique and tailor-made, generally, the court is required to conduct a hearing within 28 days of the start of the proceeding. In some cases, an ongoing investigation by court-appointed Court Evaluator (to be the eyes and ears of the court) may lengthen the process based upon a variety of medical and cognitive assessments. It is the job of the Court Evaluator to conduct an investigation and provide the court with a report with regard to the facts and circumstances of the case. In our vast experience, most guardianship cases are completed within 2 months of commencement. We believe that no attorney in Monroe County has brought more Article 81 guardianships than Dutcher & Zatkowsky.

To start the proceeding, a person or entity, called a petitioner, must ask the court to appoint a guardian. Almost anyone can be the petitioner. Upon the filing of the petition, the court may appoint a Court Evaluator or an attorney to represent the AIP, or both. The Court Evaluator normally expresses an opinion as to whether or not the appointment of a guardian is necessary.

When the petition is filed the court also sets a hearing date and orders that notice of the filing of the petition be given to close family members.

At the hearing it is necessary for the petitioner to present the court with clear and convincing evidence that the incapacitated person is incapable of managing certain aspects of his or her personal and/or financial affairs. The Court Evaluator presents his or her report at the hearing. Anyone who has filed opposition papers, or otherwise wishes to be heard, will also be given an opportunity to be heard. After the hearing the court will normally render a decision.

Who Can Be Appointed As Guardian?

New York State law creates a list of eligible guardian. Generally, any individual over eighteen years of age who is found by the court to be suitable to exercise the powers necessary to assist the incapacitated person may be appointed as guardian, including but not limited to a spouse, adult child, parent, or sibling. Additionally, social service agencies and certain other legal entities may be considered by the court pursuant to Mental Hygiene Law §81.19.

While family members are given preference when the court determines who should be the guardian, the circumstance of the case will guide the court in its decision. If there is a difference of opinion among family members as to who should serve as guardian, the court will frequently appoint an independent guardian, whose name would be taken from a list maintained by the court, including social service agencies active in the area.

The court may impose certain conditions to the appointment of a guardian, including the purchase of a bond in an amount set by the court. A bond is an insurance policy which is paid for out of the assets of the AIP which insures the incapacitated person against theft or other malfeasance by the guardian.

What Are The Duties And Responsibilities Of A Guardian?

A guardian must visit the incapacitated person at least four times per year.

Within 90 days of appointment as guardian, the guardian must file what is called an initial report. The initial report typically contains a brief summary of the status of the incapacitated person and a list of the assets of the incapacitated person.

By May 31 of each year the guardian must file an annual report with the court which explains in detail all income and disbursements from the previous calendar year.