Article 81 Guardianships

An Article 81 Guardianship is a judicial process before the Supreme Court under New York State Mental Hygiene Law for persons who lack mental ability to implement judgements or whose judgements are insufficient. It is a judicial judgment made in 1993 that an individual is incapable based on clear and compelling evidence. A person may be unable to pay bills or manage their finances but may be competent to make healthcare decisions. In such a scenario, a court may appoint a guardian with solely financial management responsibilities.

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Who Can Be Appointed as a Guardian ?

When deciding who should be the guardian, the court usually gives precedence to nominations of the disabled individual, the petitioner, and family members. If family members disagree on who should serve as guardian, the court will usually select an independent guardian, whose name will be drawn from a list kept by the court. Such a person must be 18 years of age or older. 

Furthermore, in order to act as guardian, the individual must be able to secure a bond in an amount determined by the court. A bond is an insurance plan paid for with the incompetent person's assets that protects the incapacitated person from theft or other misbehavior by the guardian. 

What is Guardianship Over a Person? 

Guardianship over the Person empowers a guardian to make all daily choices for the individual, including where the individual will reside, who will provide personal care and support, and medical decisions.

What is Guardianship Over Property? 

Guardianship over Property empowers the guardian to make property choices for the individual. The guardian's power will be determined by the individual's capacity and the size of their possessions.

The Duties and Responsibilities of a Guardian

The following are the general duties of an Article 81 guardian: 

  1. The guardian shall exercise only those powers permitted by the court order
  2. A guardian must exercise the utmost care and skill when acting for the benefit of the AIP
  3. A guardian must demonstrate the utmost trust, devotion, and fidelity to the AIP
  4. A guardian must file initial and final reports

A person who desires to serve as a guardian must first pass a six-hour training that teaches the guardian's responsibilities. The following are some of the more significant tasks. Within 90 days of being appointed as guardian, the guardian must file his or her first report. The initial report generally includes a brief overview of the incapacitated person's condition as well as a list of the incapacitated person's assets.

The guardian must produce an annual report with the court by May 31 of each year, including all revenue and disbursements for the preceding calendar year. At the end of the guardianship, the guardian must produce a final report that outlines all of the guardian's activities for the duration of the guardianship. At least four times each year, a guardian must also visit the disabled individual. 

The Process in Which a Guardianship is Appointed

Filing an Order to Show Cause and Petition in the Supreme Court and paying a fee to get an Index number initiates this sort of action. When a petition is filed with the court, the court will usually appoint what is known as a court evaluator. The court evaluator's role is to conduct an investigation and give the court a report on the contents and circumstances of the case. Normally, the court evaluator will give a review on whether or not a guardian is required. The court may also appoint a lawyer to represent the disabled individual in specific situations. When the petition is filed, the court also sets a hearing date and requires that close family members be notified of the petition's filing. The petitioner must show the court with clear and compelling proof that the disabled person is incapable of handling certain areas of their personal and/or financial affairs during the hearing. At the hearing, the court evaluator provides its decision.

How Long Does a Guardianship Last?

A guardian appointed under Article 81 stays in office until any of the following events occurs:

  1. he or she is removed as guardian for failure to obey with any court order, or for improper conduct, or for any other reason that the court deems just
  2. the AIP has gained the ability to perform some or all of the personal needs and/or property management functions that the guardian was authorized to perform
  3. the AIP passes away

Do I Need an Attorney?

​​Yes. The legislation requires that certain standards be observed, such as the form of the papers, service of process, notifications, and so on. You will need an attorney to correctly write paperwork for this procedure in order to guarantee that the regulations are followed.

You can speak with an estate planning professional at the Law Office of Inna Fershyten who concentrates in guardianship to help you file for guardianship for your loved one. Please contact us at (718) 333-2395.

3 Important Elder Law Updates in 2021

When it comes to certain aspects of Elder Law, such as Medicaid or Long Term Care Planning and Asset Protection, laws are constantly changing. For that reason, it’s important to stay updated on any recent elder laws, as they may impact you. Read about 3 important elder law updates in 2021 that could impact you.

3 Important Elder Law Updates in 2021

3 Important Elder Law Updates in 2021: 

  1. Medicaid Lookback Period: Lookback periods vary from state to state. In New York, the law requires a 5 year lookback period on Medicaid Nursing Home Benefits. This means that transfers that were done during this period are reviewed by Medicaid and a penalty is measured if the asset transfer (or “gifts”) in that period was for less than the full consideration. The transfer rate in New York is $13,037, so you should consider this if you are planning on applying for Medicaid or if you already have Medicaid and are making asset transfers. The Governor has also redesigned the program to implement a 30-month look-back period on any uncompensated transfers for home care or community Medicaid that was supposed to go into effect on April 1, 2021, but has been pushed back to July 1, 2021. Once in effect, those who plan to apply for Medicaid and who already have Medicaid after July 1, 2021, must disclose all transfers going back to October 1, 2020. There are exemptions to this update though. If the transfer is or was made to a spouse or a disabled or blind child, Medicaid does not impose a penalty. Additionally, real estate transfers to a spouse, disabled or blind child, a family caretaker that resides in the home and cares for the loved one for at least 2 years, and a sibling with an equity interest in the estate that resides at the elderly’s home for at least 1 year have been expanded to be exempt from receiving a penalty under the new Elder Laws in New York. When considering applying for Medicaid Nursing Home benefits you should take into account that your transfers prior to and after you apply for coverage matter in regards to your eligibility. 
  2. Stimulus Check doesn’t impact Medicaid Eligibility: When assessing your eligibility for Medicaid, the COVID-19 pandemic may cross your mind and specifically the stimulus checks that were given out by the federal government. The three rounds of stimulus payments that were issued from March 2020-April 2021 have been considered to be exempt from Medicaid, SSI, and other need-based benefits. This means that the payments received from the stimulus checks do not count as countable income, and will not compromise your eligibility for any of the benefits named above. This new update gives those who plan to apply for Medicaid or who have Medicaid peace of mind that these payments will not affect their eligibility for their healthcare plan and their loved ones will continue to receive benefits without any issues. 
  3. The New Power of Attorney Form: A Power of Attorney (POA) is an important document you should have especially if you are a senior. This document allows you to appoint an individual to make decisions for you when you are unable to do so yourself. The Healthcare Power of Attorney deals with any and all medical decisions that will be made on your behalf by a representative of your choosing in the case that you become incapacitated. This form that was put into effect in 2010 in New York, was known to be complicated and long. Governor Cuomo has recently issued a new form of this Power of Attorney that is simpler and shorter. This new form will go into effect in June 2021 and will not impact those who already signed a power of attorney. This new POA document is different from the one currently in effect. The difference in the new Power of Attorney form is that it’s shorter in length and is simpler in the language that it uses, making it easier for people to understand. An individual who is physically incapable of signing, but is mentally in the right state of mind can appoint a trusted individual to sign the Power of Attorney on their behalf. Banks and Financial institutions that refuse to accept this new version of the Power of Attorney can face penalties and could be subject to legal fees. This new law is great for those who are looking to make decisions on behalf of their loved ones and provide them with the best care possible. If your concerned that your Healthcare Power of Attorney is not up to date, speak with an Elder Law Attorney.

What is Elder Law?

Elder Law is an area of law that relates to issues relevant to older people and their family members and loved ones. Elder law attorneys act as advocates for their elderly clients and can handle a variety of legal matters that affect elderly or disabled people. Some of these issues are related to long-term care planning, guardianship, retirement, estate planning, and Medicaid Planning, along with other important matters. Additionally, an experienced New York City Elder Care Attorney will be able to handle the sensitive and emotional needs of an elderly person, and therefore address complicated situations that concern their clients.

How Can an Elder Law Attorney Help? 

An Elder Law attorney is informed of all current updates to the laws on Medicaid eligibility and other aspects of Elder Law. Unfortunately, Medicaid laws constantly change as well as the requirements of your state so it makes the process of finding the best plan for your loved one even harder. An Elder Law attorney will help simplify this process for you and advise you of all updates to the law creating less problems on this journey of Medicaid planning. Hiring an Elder Law attorney will ensure that you're planning for your loved one’s care in a way that corresponds with the laws imposed by the state in which you reside, while also satisfying their wishes.

For further important updates on the Elder Laws in 2021 please contact the Law Office of Inna Fershteyn at 718-333-2395 to obtain aid in receiving medical coverage to cover the cost of nursing home care and help with any of your Elder law needs.

Child Support Payments: Significance and Enforcement Methods

Child Support Payments: Significance and Enforcement Methods

Divorce settlements get further complicated when there are minor children involved. Custody battles and child support agreements are often accompanied by higher levels of stress than other divorce proceedings. When the child support is inconsistent, especially when it is heavily depended on, action must be taken to secure reliable payment schedules from the noncustodial parent. Hire a family lawyer to discuss your options in pursuing child support payment enforcement.

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Significance of Timely Child Support Payments

Often, the proper care and essential items like food, shelter and clothing are dependent on the timely payment of child support by the noncustodial parent. Child care can become expensive for a single parent, because it includes the list above as well as school supplies, medical care and extracurricular activities for the child or children. Sadly, evading child support payments is not uncommon and parents can have serious consequences for making late, inconsistent, or no payments. The child may be adversely affected as well, especially if they rely on those payments.

How Can a Child Support Order be Enforced?

There are numerous methods to assure a delinquent parent pays their past due child support obligations. First, the custodial parent must file a complaint and prove that they did not receive the child support payments they were owed. Then the court enforces compliance through one or more of the following methods:

  1. Wage Garnishment: The court, or the court-hired agency will collect payment by from the delinquent parent’s paycheck.
  2. Tax Benefit or Refund Interception: Payments can be collected by taking from the parent’s government tax refund or social security checks if they are behind or inconsistent with their support obligations.
  3. Liens and Attachments: A lien can be placed on real estate and/or personal property like bank accounts and retirement funds in order to fulfill the parent’s back child support.
  4. Credit Bureau Reporting: The credit score of a delinquent parent could be affected by the back child support payments because the agency can report this information to credit and consumer report companies.
  5. License Suspension and Passport Denial: Failure to comply with child support orders may result in the suspension of your license or restriction of your passport (if the report is sent to the department of state) to ensure you do not try to flee your obligations.
  6. Jail Time: Jail time may be the ultimate outcome if a parent manages to still avoid paying court-ordered obligations even after other measures have been taken to enforce compliance.

If you are a custodial parent that is having problems collecting child support from the other parent, then you may be set up to file a complaint against them for failure to complete court ordered payments. Contact a family lawyer with experience such as the child custody lawyer Phoenix AZ locals turn to in child support collection. It should be a smooth transaction each time to take care of your child, but if your ex is making it difficult, you may need the court’s help in collecting the money necessary to care for your child properly. Don’t wait, call today!

Thanks to authors at Hildebrand Law office for their insight into Family Law.