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Attorney Lola Waterman Speaks on …Guardianships

Health care proxies and powers of attorney are two of the legal documents that can be used in planning one’s estate for incapacity, as discussed in recent articles. Other available tools include, but are not limited to, trusts, living wills (not to be confused with a Last Will and Testament), Medical Orders for Life-Sustaining Treatment (MOLST), and Do Not Resuscitate Order forms.

So what happens when a person does not have any of the aforementioned documents in place, is now incapacitated, and has lost the ability to make decisions for themselves? A guardianship may become necessary – which begs the question “what does it really mean to obtain guardianship over another person, or to be appointed as a guardian?” Our discussion this week centers on guardianships over incapacitated adults.

Let’s begin with a short hypothetical. Ms. Z is in her mid-seventies and has been exhibiting signs of cognitive impairments for a few years although she has not been formally diagnosed with any degenerative brain disease. She remembers the names of her two children, knows she lives in her home of forty years, cooks for herself, and knows the name of her pastor. However, she sometimes forgets to turn off the stove, does not remember to collect rent from her tenant, forgets how to get back home when she goes for walks, and cannot seem to remember the names of her grandchildren, among other things. When Ms. Z falls and breaks her hips, she is unable to participate in her medical care and had no advance directives in place. She now appears not to be oriented to place or time. Her speech is confused and she is nonresponsive to questions asked of her. It also became clear to the hospital staff that the acrimony between Ms. Z’s daughter and son made it impossible to get any clear directives from them. Ms. Z’s daughter, frustrated that the hospital was not honoring her wishes for her mother’s care, files for guardianship.

In New York State, the Mental Hygiene Law, Article 81 governs guardianship proceedings. It states that in order for a court to approve a guardianship petition, the record must show that (1) the alleged incapacitated person (a) has functional limitations which impair the person’s ability to provide personal needs, (b) lacks an understanding and appreciation of the nature and consequences of his or her functional limitations, and (2) the likelihood that the person will suffer harm because of the person’s functional limitations and the inability to adequately understand and appreciate the nature and consequences of such functional limitations. New York Mental Hygiene Law § 81.15 (2015).

In plain English, Ms. Z’s daughter will have the burden of proof to show that (1) Ms. Z has functional limitations in that she is presently unable to participate in her own medical care, including an inability to engage in discharge planning as shown by her confused state and unresponsiveness, (2) due to her confused state and unresponsiveness, Ms. Z is unable to appreciate the nature of her inability to participate in her own medical care, and (3) that if someone does not step in and make decisions on her behalf, Ms. Z will suffer harm by not receiving the proper medical care. Ms. Z’s daughter may call on lay witnesses, family members, and any relevant experts to prove her case.

In order to make its determination, the court appoints a “court evaluator” and in some instances, an attorney to represent the alleged incapacitated person (“AIP”). The court evaluator is tasked with interviewing the AIP, investigating the circumstances surrounding the case, and making a written report and recommendation to the court as to whether a guardian should be appointed. The court evaluator may also interview family members, friends, healthcare providers and any other persons that may provide some insight into the AIP’s circumstances. In essence, the court evaluator serves as the “eyes and ears of the court,” and his or her recommendation plays a role in the court’s decision.

Continuing with the hypothetical above, if the court finds that Ms. Z is indeed “incapacitated” within the meaning of Article 81, a guardian will be appointed if it would be beneficial to Ms. Z. Oftentimes, the court will also be called upon to determine who to appoint as guardian. Ms. Z’s son may have appeared in court to oppose the appointment of his sister as their mother’s guardian. If the court and the parties determine that the contention between Ms. Z’s children makes it unlikely that they will be able to work together, or that appointing one sibling over the other may lead to the alienation of Ms. Z from the non-guardian child, the court will appoint a third party such as another relative, a friend, a court appointee, and/or a community guardian.
A guardian may be appointed indefinitely or for a limited duration. The powers granted to a guardian can be very broad, or narrowly tailored depending on the circumstances. In Ms. Z’s case, those powers may include to engage in discharge planning, relocate her to a skilled nursing facility, implement home care, pay her property taxes and other bills, collect rent from her tenant, change the locks to her apartment and retain a key, sell her home if determined she cannot return there, marshal her social security and pension income, apply for Medicaid and other public benefits, determine her health care providers, make medical decisions, and bring lawsuits on her behalf.

Most guardians are required to provide an initial report to the court within ninety days of being appointed, and annually thereafter. As can be imagined, guardianships can become quite costly. The court evaluator, attorneys, and the guardian all have to be paid for their work, and generally, their fees are payable from the assets of the incapacitated person.
Guardianships should not be taken lightly and should only be utilized as a last resort. Appointing a guardian ensures that a person is dispossessed of some or all of his or her civil liberties, including the right to decide where to live, who to provide care, how to spend money and manage property, and so much more. Guardianships may also have long-lasting emotional and psychological impacts on those adjudicated incapacitated.
Sadly, guardianship rates continue to rise with the uptick in dementia diagnosis, an aging population, and the continued lackadaisical attitude towards estate planning. And although having your advance directives in place is not a surefire way to prevent a guardianship, those documents may be relied upon by the court ascertaining your wishes and intent concerning your medical and financial matters.

Be encouraged to get your affairs in order. I can be reached at lolaowaterman@gmail.com. Lola Waterman, Esq.
Note: Almost anyone can commence a guardianship proceeding – a family member, friend, someone residing with the AIP, a neighbor, a facility where the AIP resides, Adult Protective Services, the AIP him or herself, or any other person concerned about the welfare of the AIP.

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