guardian - Trust and Estate Planning Law Office

Article 81 Guardianship of an Incapacitated Adult in New York

As people age, they gradually lose the ability to care for themselves. There are also occurrences when a person becomes physically incapacitated and is unable to function without supervision as a result of physical impairment. Although these can be unpleasant situations for families, New York has provisions to provide care for those who can no longer care for themselves. One of these provisions is Article 81 of New York’s Mental Hygiene law, otherwise known as Article 81 Guardianship, which authorizes a court to appoint a guardian to manage the personal needs and/or finances of a person that cannot handle them on their own. The process of petitioning for guardianship is relatively swift and the powers of a guardian depend on the condition of the incapacitated person. However, all decisions must be rendered by a judge and approved by the court. During the petition process for guardianship, having an experienced guardianship attorney will help alleviate the burden placed on any family and ensure that guardianship hearings end favorably for the petitioning parties and all necessary powers are placed in the hands of a trusted guardian.

When Does Article 81 Go Into Effect?

Article 81 Guardianship is an authorization given by a court to a guardian to manage the personal and/or financial matters for a person that has been deemed by the court as incapacitated. Capacity refers to the ability for an individual to make decisions for themselves Each Article 81 Guardianship case is different because they involve different levels of incapacity and different powers allocated to each guardian. In an article 81 case, incapacity refers to common mental disabilities such as dementia, Alzheimer's, and physical impairments. The moment that an individual is proven to be mentally disabled, they are no longer legally eligible to sign any estate planning documents. Therefore, it is crucial that a healthcare proxy and power of attorney are signed beforehand in a right state of mind.

Some guardians might be given the authority to pay bills for an incapacitated person while others are given the authority to prevent self-neglect since the individual is unable to provide adequate medical and hygienic care for themselves. Other guardians might be given the authority to prevent financial abuse because elderly financial exploitation is an ever-present and fast-growing danger, or physical abuse, whether by family members, acquaintances, or those providing care. Guardians might also be authorized to engage in Medicaid and estate tax planning. In any case, having an experienced elder planning lawyer is important so that all powers can be assigned to trusted guardians and then enforced properly.

The Process of Petitioning for Article 81 Guardianship

Petitioning for Article 81 Guardianship is a serious matter and thereby has a dedicated and intricate process. In order to obtain Article 81 guardianship, a petitioner must file a case with the Supreme Court or county court where the incapacitated person lives. At the beginning of each Article 81 case, the person on whom’s behalf the petition is being filed is referred to as an “alleged incapacitated person” because their inability to care for themselves is, at the point, only an allegation. To begin an Article 81 case, the petitioner must complete four steps:

1. Fill out the following forms:

A petition: A written order asking the court to start a case.
An order to show cause: A written request asking the court to rapidly open a case which will also be used to inform the alleged incapacitated person that an Article 81 application has been filed in court and lists the powers the petitioner believes the guardian should have over alleged incapacitated person, among other things.
A request for judicial intervention: A request for a judge to be assigned to the case.

2. File a guardianship petition.

3. Pay a filing and index number fee.

4. Serve legal papers to all people involved in the guardianship case, including the alleged incapacitated person, within a time frame set by the court.

Once the Article 81 case is filed by the petitioner, a hearing presided over by a judge will occur within 28 days after they sign the order to show cause. The court will appoint an evaluator to speak to the alleged incapacitated person, evaluate evidence, and present a written report. After the written report is presented, a formal hearing takes place where a petitioner presents their case stating why the alleged incapacitated person needs a guardian, testimony is heard, and evidence is considered. At the end of the hearing, the judge will determine whether the alleged incapacitated person is indeed unable to handle their personal or financial matters and whether they appreciate the consequences therein of not being able to handle such matters. They then will attempt to find the least-restrictive remedy to protect the alleged incapacitated person’s independence as much as possible. If the incapacity is sufficient enough that the judge deems guardianship necessary, they will determine the powers allocated to the guardian, whether more than one guardian will be appointed, and the duration of the guardianship. After a guardian is appointed, the petitioner must have an order and judgment form signed by the presiding judge, and then send it, along with a notice of entry, to all those who received a copy of the verified petition. All guardians must complete a six-hour course where the duties of the guardian are explained.

The Implications of Article 81 Guardianship

As outlined above, petitioning for Article 81 Guardianship is an intricate process which should not be taken lightly. In the event that an alleged incapacitated person has not pursued a health care proxy or power of attorney prior to being diagnosed with a cognitive disability, an Article 81 proceeding is one of the few ways where an individual can obtain agent status over them. It is also important to note that courts can appoint temporary guardians or neutral guardians in the event that petitioners cannot agree on a guardian between themselves. Accordingly, it is crucial to find unanimity on an appropriate guardian and plan for all eventualities, no matter how unpleasant they might be to contemplate. Having frank discussions with aging relatives about the possibility of medical emergencies and incapacities can help to ease tension and ensure that the aged person understands there is a plan in place for their care. Having an experienced elder planning attorney will help in creating the best possible long-term health plan and ensure that guardianship hearings end favorably for the petitioner. To ensure appropriate care for a loved one and begin planning their estate, call the Trust and Estate Planning Law Office at (718) 333-2395.

“I Care A Lot” reveals the unfortunate reality of POA and Health Care Proxy

In 2021, Netflix released the movie “I Care A Lot.” In this film, a rich Marla Grayson repeatedly convinces the court that elderly individuals are not mentally stable and need to be taken care of. After the court grants her guardianship, she moves her victims into an assisted living facility, sedates them, and takes their phones to ensure zero contact with the outside world. During this period, Marla sells her client’s properties, cars, and assets and banks the profit. However to her surprise, her next victim Jennifer Peterson is a lot harder to manage. Peterson’s son is a dangerous mafia boss who makes it his mission to make Marla’s life miserable and release Jennifer from the assisted living facility. While the film is intended to be a satirical and dark comedy, it references many financial and healthcare issues that could have been prevented with a definitive estate plan that included a Power of Attorney and Healthcare Proxy.

“I Care A Lot” Teaches Valuable Estate Planning Lessons

One day, Marla knocks on Jennifer's door and randomly presents herself as a newly appointed guardian. This could have been prevented if Jennifer, an extremely wealthy elderly woman, had appointed a power of attorney and healthcare proxy. While many often believe the two tackle the same problems, that is incorrect. A power of attorney appoints someone to take care of financial decisions for you. On the other hand, a healthcare proxy appoints someone to make medical decisions for you when you are no longer mentally or physically capable to do so.

Real-World Implications

Although the film is clearly intended to be satirical and dramatizes the life of a fraudster, elder financial exploitation is no laughing matter and has been on the rise. According to a 2018 article from the Securities and Exchange Commision, a study in New York state found that financial fraud cost elderly victims $109 million, though that number is likely much higher due to underreporting and the higher occurrence of healthcare fraud since the beginning of the COVID-19 pandemic. An article from the American Bankers Association reports that financial crimes cost elderly victims $2.9 billion in 2022. Elder financial abuse is among the most frequent forms of elder abuse, and elderly people are more likely on average to be targeted for financial fraud. Two factors in the prevalence of elderly financial exploitation are social isolation and mental impairment. Those older persons without close family or friends and those with physical or mental impairments such as Alzhemeir’s are more likely to be victims of financial crimes and are the preferred targets of fraudsters.

Elder financial exploitation takes many forms. In some cases, it may involve a caregiver convincing the victim to sign over to them their power of attorney. In other cases, it might involve a caregiver stealing a victim’s cash, cashing their social security checks, or using their credit cards. In more extreme cases, it might involve the victim signing over inheritance rights to real estate or savings accounts to “new best friends” or previously uninvolved relatives. Because there are no physical signs of abuse, elder financial exploitation can be extremely difficult to catch and can continue for years before irregularities are finally realized.

How To Protect Your Loved Ones

To protect your loved ones from potential exploitation, it is important to look for warning signs and report them immediately. It is also important to familiarize yourself with the wide-range of warning signs and the organizations dedicated to investigating and preventing elder financial exploitation. Some warning signs include fraudulent signatures on financial documents, unpaid bills that had previously been recurring automatic charges, sudden changes in a person’s will, trusts, or insurance coverage, and an unexplained transfer of assets to a caregiver or unknown third-party. This list is not exclusive, as fraud can occur through investments and annuities, telephone “sweepstakes” scam, and phony home-repair charges.

Some of the many helpful organizations at your disposal include the Adult Protective Service, National Elder Fraud hotline, and Long-Term Care Ombudsman programs. An experienced elder planning and Medicaid fraud attorney will also help in perceiving cases of fraud and contacting the proper authorities. In addition to these resources, it is important to be open and honest when discussing finances with your loved ones. Never sign a financial document without a second opinion, and never feel pressured to engage in a business dealing or investment. Report anything you feel uncomfortable about to your loved ones or the proper authorities. Above all, do not remain silent!

Conclusion

The satirical “I Care A Lot” is a worthy watch and certainly has its humorous moments, however it is most important to heed its lessons. Elderly people are at particular risk for financial crimes, and they are often the preferred target for fraudsters because of their perceived vulnerability and fragile health. Although the signs of exploitation and fraud are varied and sometimes hard to spot, remaining vigilant and engaging in frank financial discussions with your loved ones will help protect you from becoming a victim. Having an experienced estate planning and asset protection lawyer in your corner will also help you to prevent any potential damaging financial occurrences. For all your asset protection needs, call the Trust and Estate Planning Law Office at (718) 333-2395.

How to Prepare for a Meeting With an Estate Planning Attorney

Estate planning can often be an overwhelming process. Aside from having to get your affairs in order, you are also forced to think about things you may have never thought of before. For example, what would you want to happen at the event of your death? What should be done with your home? Who would you like to give your assets to? Thus, there is a lot to consider and it can get very stressful. This is where an estate planning attorney comes in to guide you.

What is estate planning?

Estate planning is the process by which an individual arranges their assets and designates who will receive them at the event of their death or incapacitation. Its purpose is to ensure your wishes and goals are fulfilled in the best way.

When the time comes to meet with your estate planning attorney, there are a few things you can do to be prepared and make the process smoother:

Inventory

One of the first things you should do is review your assets, this can be both tangible and intangible.

Tangible assets may include:

Homes, land, real estate
Vehicles like cars, boats, motorcycles
Collectibles, antiques or other personal valuable possessions

Intangible assets may include:

Checking and savings account
Stocks, bonds, mutual funds
Retirement plans like 401K, 403B, IRA’s, etc.
Ownership in a business
Life insurance policies

Documentation

Once you have finished inventory of your assets, your next step should be preparing to provide documentation of financial statements, this may include but not limited to:

Bank and investment account statements
Business agreements
Grant deeds to real estate
Life insurance information
Mortgages
Trademark, patent and copyright registration certificates
Divorce agreements

Account for Family

One of the most important steps is to discuss your wishes with your family and consider what you want to leave for them in the event that you are no longer with them. Although it may be difficult, it's important to be clear and open about your decisions, as other family members may have different views than you. Some things you may want to consider:

Assigning a guardian for your children if need be
Having enough life insurance
Documenting your wishes for your family's care
Taking consideration for special care needs of family members with disabilities
Deciding what specific assets you want to leave for each member
It is also important to have information on all family members (names ,ages, contact information, etc.)

Establishing Roles

During estate planning, there are different important roles that come into play that you should think about. This includes deciding who you assign to be an:

Executor- someone who carries out directions in a will that deals with financial affairs and assets.
Beneficiaries- anyone you name in your estate plan to receive benefits.
Trustee- someone who takes legal ownership of your assets held in a trust and is responsible for managing them.
Successor trustee- someone who takes role of a trustee in the event the original trustee dies or becomes incapacitated.
Guardian- if a minor is involved, a Guardian needs to be appointed in the event both parents die before the minor becomes an adult
Agent (health care)- someone you give the power to make medical decisions for you if you are unable or incapacited. (a health care agent cannot override any preferences you have set in a living will)
Durable power of attorney- a person or people you authorize to make decisions on your behalf when you are not physically or mentally capable.

Be Prepared With Questions

Estate planning can be a tricky process, therefore you should never hesitate to ask an attorney any questions you may have. After all, they are there to help you and make this process as simple as possible !

For assistance on your estate planning needs, contact the Law Office of Inna Fershteyn at (718)-333-2395 for highly qualified advice.

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.

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:

The guardian shall exercise only those powers permitted by the court order
A guardian must exercise the utmost care and skill when acting for the benefit of the AIP
A guardian must demonstrate the utmost trust, devotion, and fidelity to the AIP
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:

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
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
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.

What Are a Senior Guardian’s Responsibilities?

Coming to terms with a loved one’s deteriorating mental health is never easy. However, if their mental health reaches a point where they are unable to make decisions, it may be necessary to look into obtaining guardianship of their care. A senior guardian is granted legal authority by a court to make decisions for their loved one who is no longer capable to do so themselves. An individual that a court decides is no longer able to care for themselves is called a ward. A senior guardian oversees a ward’s daily care or financial transactions, and sometimes both. If you are considering obtaining guardianship, it is important to become informed of both the required time commitment and emotional demands. It is crucial that you also understand the constraints this may place on your newly evolved relationship due to the necessary limitations placed on the ward’s independence.

Types of Guardianship and Guardian Responsibilities

When an individual is deemed mentally incompetent in a legal setting, they are named a ward of the state. A senior guardian, often a loved one, is then granted the power to oversee their care. Guardianship is divided into two categories that deal with different aspects of the individual's needs. The first category allows the guardian to oversee the ward’s daily care. On the other hand, the second category grants the guardian power to oversee the ward’s personal and home property. There are also instances in which the guardian is granted full oversight over both; this type of guardianship is known as full or plenary guardianship. This oversight may be granted to one guardian or split amongst two individuals according to daily care and property management. They then must work together closely when making important decisions concerning an overlap of the two.

Guardianship of the Person

Guardianship of the person administers oversight of the ward’s daily life: medical, residential, and social decisions. If appointed as a guardian that presides over these decisions, the responsibilities may include:

Release of confidential information
Oversight of residence
Determination of residence location
Applying for government/medical benefits
Providing consent for medical treatments
Making end–of–life care decisions
Making sure their care is managed in the the least restrictive way possible
Reporting to court at least once a year

Guardianship of Property

This guardian is also known as a guardian of the estate: someone who manages the ward’s finances and property. First, an appraisal of the ward’s income, assets, and debts, must be assessed. Then, the estimate must be filed with the court once a legal guardian is appointed. The guardian must always keep the ward’s funds in a separate account from their own and cannot allocate these assets/income toward their own needs.

A guardian of the property may have the following responsibilities for a ward:

Deciding how finances are handled;
Applying for and managing government benefits
Making investment decisions;
Paying bills, rent, and taxes
Keeping detailed records of all income and expenditures;
Requesting prior court approval for the sale, donation, transfer or mortgage of their property
Reporting to court at least once a year with a complete account of finances

** Sometimes, when a guardian applies for and manages government benefits on behalf of another individual, a power of attorney is required. An elder law attorney can professionally and adequately prepare a power of attorney that proves a guardian has the legal right to act on behalf of another individual. A POA guarantees an agent the right to act on behalf of the principal.

Accepting the Role of Guardian

There is no denying that accepting guardianship of a loved one is an extremely demanding emotional process and is time consuming. When a guardian obtains oversight of a ward, they are agreeing to surrender an individual’s independence to their care. This is difficult to come to terms with and often a rigorous process determining when to allow independence and when to place constraints on it. It is also important to understand that every case is unique and what may work for one ward/guardian relationship, may not work for another. A guardian agrees to take on the role of protecting their ward from abuse, exploitation, and neglect both from themselves and their environment. Before accepting this decisive role, it is important to voice your concerns with other family members. It is crucial that you are confident in your answers to two questions: Do I have the time and emotional strength to qualify for guardianship of this individual? Is there someone else I know that would be a better fit? Once you have the answers to these questions, it is important to obtain professional legal advice and elder law administration.

For all of your elder law planning needs, please contact the Law Office of Inna Fershteyn at (718) 333-2395 to receive help in obtaining guardianship.

Article 81 Guardianship of an Incapacitated Adult in New York

"I Care A Lot” reveals the unfortunate reality of POA and Health Care Proxy

How to Prepare for a Meeting With an Estate Planning Attorney