August 11, 2018










Common Roadblocks In Setting Up Legal Guardianship of a Minor

A guardianship is established when the court determines that a child’s biological parents are no longer able to care for a child appropriately. A case may be brought to court by child protective services if abuse has been filed against the parent. A case may also be brought to court by the person attempting to become guardian or a relative of the minor in question. Whatever the situation, there are several common problems that can arise when trying to become a guardian. While the legal process of guardianship does not strictly require the use of an attorney, having one is highly recommended.

The Custodial Parent Objects to the Guardianship

This is perhaps the most common problem with acquiring guardianship. Most situations involve a forced removal of the child from parental custody, but the law here is somewhat ambiguous because the biological parents’ rights may still intact. This gives the parent a great deal of say over the guardianship and who can become a guardian. The parent may also make certain demands, such as reasonable visitation, that may conflict with the guardian’s schedule and make the overall process much more difficult.

Missing Notice Forms

The law is very strict on the requirement that a guardian give “legal notice” to certain individuals, relatives and agencies involved with the child. Some of these individuals may be apparent, such as the child’s current parents or custodians. Others may not be apparent or may not be directly involved in the child’s care. It is your responsibility to find these individuals and “serve” them a legal notice form. If you cannot find the person, then you must appeal to court to allow the case to go forward regardless. A mistake during this process can require you to start the guardianship process all over again.

Home Study Failure

The court will appoint an investigator to interview you, the child, the parents and other applicable individuals. They will also conduct a home study to ensure that your home environment is suitable and meets certain standards. The investigator will be looking to ensure that the child will have adequate personal space, access to nearby education, access to acceptable healthcare and a space appropriate for parental visitation. Inadequacies in any of these areas will be reported to the court and may result in a delay of the guardianship process.

Return of Absent Parent

It should be noted that biological parents always have first parental right, even if they have been absent from the child for a long time or were not currently holding custody. A guardianship case may be hindered if an absent parent returns unexpectedly to claim his or her parental rights. The court will have to assess the parent’s appropriateness and may assign the child to the returned parent instead of the guardian.

A judge makes the final decision on all guardianship cases. Keep in mind that a guardianship is not an adoption, and it can be revoked by the court at any time. Many guardianship cases on Long Island result in the child being ultimately returned to their biological parents.

Sources:
http://www.courts.ca.gov/1212.htm
http://oklaw.org/issues/family/guardianship

 

The Basics of Guardianship, Health Care Decisions, and Power of Attorney

Legal terms can be confusing. To help those debating over the best care options for their loved ones, below three common elder law terms are defined and explained.

Guardianship

Guardianship is a term used to define anyone who has custody of, or the sole responsibility of caring for, an aging parent or other elderly relative or friend. Guardianship of this nature is usually requested and/or obtained by a close relative or trusted friend of an elderly person when it is deemed that the person needs someone to take care of them due to such issues as a disability, dementia, Alzheimer’s disease, or a terminal illness that renders the person too ill or weak to take care of himself. Guardianship of a disabled or terminally ill relative or aging parent may also be granted by a judge if there is a dispute regarding who has the legal “right,” as well as the best means possible, to provide the necessary care.

Health Care Decisions

While many people think of this subject in relation to the elderly, health care decisions must also be made for children and disabled or terminally ill relatives as well as aging parents. Such health care decisions often include what is known as a living will, also referred to as an advance directive. This important document simply specifies the person’s wishes regarding medical care in the event of a terminal illness or other medical condition or emergency which would leave the person in a coma or vegetative state and unable to make decisions. This also ties in closely with power of attorney, which is addressed next.

Power of Attorney

Granting a power of attorney is an important, personal decision that involves choosing someone to make all legal and medical decisions in the event that the person doing the choosing becomes unable to make decisions for or care for himself. A power of attorney is a legal power which requires the acceptance and agreement of the chosen party to care for and carry out the other person’s wishes, within reason, as well as required legal documentation which has been prepared by the person’s attorney.

Need More Advice?

To fully understand the ramifications of different care and decision-making arrangements for your loved one, it is best to seek the advice of an elder law–focused lawyer. Long Island attorney Andrew Lamkin has long experience working exclusively on elder law and related legal questions. Contact us today for a free consultation at 516-605-0625.

5 Alternatives to Guardianship

A guardianship is a position of total authority and responsibility for a disabled adult who is for some reason incapable of making decisions to support himself or manage his affairs. Such persons are referred to as wards. Often, a person may be temporarily disabled or in need of less restrictive assistance. There are several alternatives to guardianship that may be more appropriate or preferable for such individuals.

A Health Care Proxy*

A health care proxy’s support is limited to only those decisions involving health matters, such as hospital stays, operations, and long-term care. A health care proxy is usually called upon for short-term disabilities such as periods of coma or unconsciousness. The proxy may also be called in for long-term disabilities such as dementia or terminal illness. The proxy is usually a family member, but it can be any agent agreed upon by the individual.

A Personal Caregiver

A personal caregiver is usually an employed professional trained to provide for people with serious illnesses or disabilities that prevents them from caring for themselves. Personal caregivers are usually assigned to those who do not require hospitalization, but cannot live independently. A personal caregiver may visit temporarily to provide meals or services, or they may stay at the home to provide round-the-clock care. A caregiver is often assigned by a hospital or other medical agency. They generally do not have legal permission to make decisions for the individual, but they may have access to personal information and limited access to financial resources needed for that person’s care, such as buying groceries or medical supplies.

A Power of Attorney

A power of attorney is a legal ability to make financial or healthcare decisions for a particular person. The person provided with power of attorney is known as the attorney-in-fact. Power of attorney can vary from complete control of a person’s financial resources to limited control of only a single aspect. For example, an attorney-in-fact may be assigned to deal only with a person’s health care needs, much like a health care proxy, or they may be assigned only to deal with a person’s investments or estate. Power of attorney is often given to a family member, but it can be given to any individual at the disabled person’s discretion.

A Representative Payee

A representative payee is an individual assigned by the Social Security Administration to handle a disabled person’s Social Security and SSI payments. The SSA dictates a representative payee, with input from the disabled person if possible. The SSA will choose family members or close friends first. If none are available, they will use a qualified organization to act as a representative payee.

Trusts

A trust is a wealth management tool that allows an asset to be held by a third party on behalf of a beneficiary. Anyone can hold an asset in trust for anyone else, regardless of age or disabled status. Trusts are often used to handle inheritance and to limit the impact of inheritance or estate taxes.

Know the Facts Before Making Your Decision

Elder law attorney Andrew Lamkin focuses on providing advice on how to best fulfill the care and decision-making needs of your dependent loved one. Contact his law office today at 516-605-0625 to receive a free consultation and ensure that you make the most suitable choice for those who depend on you.

Recommended Resources
http://www.health.ny.gov/professionals/patients/health_care_proxy/
http://www.ssa.gov/payee/
https://www.fidelity.com/estate-planning-inheritance/estate-planning/trusts