By Bernard A. Krooks, Certified Elder Law Attorney
Recently, your mom’s ability to care for herself declined and she was no longer able to live alone. You and your siblings and mom all agreed that it was best for her to move into an assisted living facility. Together, you found a suitable facility and mom moved in. After an initial adjustment period, mom settled in and things were going well. Several months later, however, you receive a call from someone at the facility letting you know that mom’s condition has deteriorated significantly and you need to apply for guardianship for mom. What does that mean, and what should you do? Do you have any other options?
First and foremost, guardianship is a last resort. There are generally two different types of guardianships in New York. One is for guardianship of an individual with a developmental disability which is brought pursuant to Article 17A of the Surrogate’s Court Procedure Act; the other is brought pursuant to Article 81 of the Mental Hygiene Law for a person (usually an adult) who is alleged to be incapacitated and is the type of guardianship discussed in this article. Although adult guardianships in New York are tailored to meet the specific needs of the alleged incapacitated person and are supposed to be the least restrictive form of intervention, guardianship still means court involvement. You will need to hire a lawyer and it could get expensive depending on your particular family situation. There could be numerous court filings and hearings, as well as appointment of a third party to represent mom’s interests. All of this could add up to significant expense and could take months to complete.
So explore and understand the alternatives to guardianship. If the purpose of the proposed guardianship is to make health care decisions for mom, you may not need a guardianship at all. New York law permits family members to make certain health care decisions for others incapable of making their own decisions. The law establishes a hierarchy of “surrogate” decision-makers for those who have lost their capacity to do so and did not sign advance health care directives such as a health care proxy or living will. The law sets out a priority listing, with court-appointed guardians atop the list, followed by spouses and domestic partners, children, parents, siblings and close relatives or friends. If mom has capacity, she should sign a health care proxy and/or living will. This way, she may select the person she desires to make medical decisions for her when she can no longer do so herself and not rely on the hierarchy of surrogate decision makers in the law who may not be the people she wants in control of her health care decisions.
If the purpose of the guardianship is to make financial decisions for mom, you should consider whether mom is able to understand and sign a durable power of attorney. Just because the facility has advised you that mom’s condition has deteriorated significantly does not necessarily mean that she cannot understand and sign a durable power of attorney. If she can sign, then she will be able to appoint others to make financial decisions for her and to handle her finances. This can often obviate the need for court involvement and a guardianship. Keep in mind, however, that there is no law regarding “surrogate” decision makers for financial matters like there is for health care decisions. Even spouses do not have the automatic right to handle one another’s financial matters. Neither do parents have any automatic right to handle a child’s finances. Thus, if there is no durable power of attorney in existence and mom is incapacitated, a guardianship may be necessary.
Another planning option for mom if she does have capacity is to create a trust to hold her assets. If she does this, she could appoint someone as successor trustee for her in the event she loses capacity. The successor trustee would be able to step into mom’s shoes and manage her assets which are in the trust without necessity of court involvement. The key here is to make sure all of mom’s assets are actually re-titled in the name of the trust.
If mom does have capacity, the above steps should be taken as soon as possible since her condition could worsen at any time and she may no longer have capacity to execute health care or financial advance directives. At that time, it may be necessary to commence a guardianship proceeding. Legal capacity may be fleeting, especially for an older person in an assisted living facility. Thus, time may not be on your side. Act quickly and responsibly and you may save your family from having to go through a guardianship proceeding.
Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP and has been honored as one of the “Best Lawyers” in America for each of the last seven year, past President of the National Academy of Elder Law Attorneys (NAELA), past President of the New York Chapter of NAELA and also served as chair of the Elder Law Section of the New York State Bar Association. He has been selected as a “New York Super Lawyer” since 2006. Call 914-684-2100 or visit elderlawnewyork.com.