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Procrastination Leads to Guardianship

It is never fun or easy to visit your attorney (maybe I should stop here) and envision and discuss situations where your health declines to the point where you can no longer make health or medical decisions for yourself. This is why many people delay and avoid going to their attorneys to discuss the preparation of a health care proxy, a living will, and a power of attorney. If you are unlucky and never prepare these documents, New York State’s Mental Hygiene Laws (specifically, Article 81) provides for the appointment of a Guardian. Don’t think that this is a particularly pleasant process.

While of sound mind and understanding you could have named the people you felt were best suited to handle your finances (power of attorney). While of sound mind and understanding you could have named the right person to make medical decisions for you; the person that understands your wishes (health care proxy). Your enemy –procrastination – got in your way and now, if you became incapacitated, a judge will get involved to determine who should make these decisions for you. Not only a judge, but a court evaluator, and potentially others that get involved in your private affairs and these people and the cost of the proceedings all get paid by your assets – and these proceedings are never inexpensive.

Clearly it is wise, less expensive, less embarrassing, and less time consuming to visit with your attorney and prepare your advance planning documents (health care proxy, living will, and power of attorney).

For those unlucky people who never get around to planning ahead, the people who can begin a guardianship proceeding for them are any of the following:

  • a presumptive distributee of the person alleged to be incapacitated (usually the children);
  • an executor or administrator of an estate when the alleged incapacitated person is or may be the beneficiary of that estate;
  • a trustee of a trust when the alleged incapacitated person is or may be the grantor or a beneficiary of that trust;
  • the person with whom the person alleged to be incapacitated resides;
  • a person otherwise concerned with the welfare of the person alleged to be incapacitated. (may include a corporation, or a public agency, including the department of social services in the county where the person alleged to be incapacitated resides regardless of whether the person alleged to be incapacitated is a recipient of public assistance);
  • the chief executive officer, or the designee of the chief executive officer, of a facility in which the person alleged to be incapacitated is a patient or resident.i 

Think carefully about this list, these people will become intimately involved in your private affairs. They may not be the right people for you – you do have a choice, but you need to be proactive. Fight procrastination, avoid Article 81 Guardianships, and name the people you trust to handle your affairs.

Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.

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