11/19/2017










Guardianship for Incapacitated People in New York – What is the Process?

estate planningUnder New York’s Mental Hygiene Law, Article 81, the courts are authorized to appoint a guardian to manage a person’s financial affairs if he or she cannot manage those affairs for him or herself, due to being mentally incapacitated. It is important to note that guardians under Article 81 do not all have the same rights or powers. Instead, the guardianship limits are specifically created so that the guardian’s powers are granted based on what is specifically necessary to meet the needs of the incapacitated individual – and nothing more.

For example, a person may be unable to manage his or her finances by balancing the checkbook, paying bills, etc. But, he or she has the ability to make healthcare decisions on his or her own. In this case, under Article 81, the court would grant guardianship over the individual’s finances, but that same guardian could not make any healthcare decisions.

In those instances where guardianship needs to encompass multiple areas, the powers granted by the court would then include a full panoply of financial management powers, as well as healthcare decision-making powers. But, the court would first determine the mental capacity of the individual, as well as what course of action is best before appointing such guardianship to another person.

Can Guardians Be Given the Authority to Pay Bills on Behalf of the Incapacitated Person?

Yes. This is the most common reason why a guardian is appointed by the courts. The person no longer can pay his or her own bills or manage finances; therefore, the courts will appoint a guardian to handle such tasks for the individual. The court-appointed guardian will then pay bills, make investments, and exercise his or her financial rights – but always in the best interest of the person for whom he or she is a guardian – not out of self-interest. The guardian will make decisions in a manner that the incapacitated would have made, if that individual could make sound decisions on his or her own.

The Power to Prevent Self-Neglect

Sometimes, the incapacitated are not able to provide themselves with proper medical care; therefore, they are at risk for self-neglect. In this case, the courts would appoint a guardian to help him or her with basic activities – including self-hygiene. Sometimes, the guardian will be given authority to remedy situations inside the home, such as modifying for disabilities or even removing things that have accumulated because the individual could not care for him or herself.

Financial Abuse and Guardians

Occasionally, there are guardians who think more of their own financial gain than that of the person for whom they are assigned to care. In this case, the courts can step in and have that guardian removed from the position. The court can also temporarily freeze financial accounts to prevent the current guardian from abusing his or her power any further.

Avoid Inept Appointments – Contact an Estate Planning Attorney

As part of a comprehensive estate plan, you can list guardians whom you would like to be appointed to care for your health and finances when you become incapacitated. Contact an estate planning attorney today to explore your options and start protecting your future in the event that you can no longer make decisions on your own. Schedule a consultation now with the Law Office of Andrew M. Lamkin, P.C. by calling 516-605-0625, or contact us online.




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