legal guardianship - Trust and Estate Planning Law Office

What Happens to a Loved One’s Property After Death in New York

For many elderly people, their co-op or condo is their most valuable asset. In New York, specifically, these properties are worth at least hundreds of thousands of dollars. It is crucial that you have a well-thought-out plan established in case the elderly owner becomes incapacitated or passes away.

You shouldn’t have to ask yourself who is legally supposed to pay rent in case of an emergency, or if you can live there if the senior passes away. These are simple questions that need to be thought about beforehand. If you don’t have clear plans set in place, you will be forced to deal with unnecessary stress, chaos, and expenses. This is why we recommend you educate yourself now and take the steps to produce a plan that ensures a smooth transition following incapacitation or death.

This article will explain what happens to a co-op or condo if an elderly owner cannot manage it anymore and how the family can proactively plan for this future. If you are a senior homeowner or the child of one, you must be able to understand this process and the differences in planning for incapacitation or death, and therefore prepare effectively.

Differences with Co-ops

Before breaking down how to properly plan your estate, it is important to understand how dealing with co-ops is different from dealing with condos. Co-ops are shares in a housing corporation. If you are the owner of a co-op, you hold stock and have a lease that gives you the right to live in an apartment. Any transfer of ownership requires approval from the co-op board, so it is important that you reach out to the board immediately after the incident to limit delays and complications.

What Happens When the Owner Becomes Incapacitated and How you Should Plan for it

When the owner of a co-op or condo becomes incapacitated, often due to medical emergencies like a stroke or dementia, this means that they can no longer handle the responsibilities of managing their property. The owner then struggles to deal with tasks like staying on top of their payments or making decisions about repairs or even a sale. This situation can be extremely stressful for the senior’s family if they do not plan ahead.

As a result, while still competent, the senior should sign a power of attorney (POA). This document names a trusted person as the senior’s agent, who would step in and handle these responsibilities on the senior’s behalf. The agent would manage finances, communicate with the condo association or co-op board, and simply take all of the tasks that come with property ownership onto themselves. It’s important that the POA document is very clear and states that the agent will deal with the senior’s real estate. Sometimes, co-op boards or condo associations will be very particular about the thoroughness of the document, and some may even request further communication with the attorney to confirm the agent’s ability to fulfill this role. That’s why it is incredibly important to ensure that this document is up to their standards and will not cause delays or complications in the future.

Now that you understand what needs to be done in case of this situation happening, let’s look into what would happen to the property with no planning. If no POA document has been signed or even if the document is too vague, this would require a different, lengthy, and expensive process to take place. The family would be forced to seek court intervention to petition for legal guardianship under Article 81 of the New York Mental Hygiene Law. This process can cause a lot of uncertainty and emotional strain for the family, as it can take months to be settled and costs thousands of dollars. During a difficult time like this, hiring attorneys and appearing before a judge is the last thing a family needs. Court intervention can also be extremely unpredictable. The court’s decision may be to appoint a guardian who isn’t who the family thinks is best. This is a stressful and time-consuming ordeal that can easily be avoided with proper legal planning.

What Happens When the Owner Passes Away and How you Can Plan for it

When a senior homeowner passes away, what happens to their home can be straightforward and clear with effective estate planning. While this is naturally a difficult time, the process of distributing their assets, especially their real estate, doesn’t have to be complicated or stressful.

To plan for such an outcome, the condo or co-op should be transferred into a revocable living trust. This legal document is created while the individual is healthy and specifies how their assets will be handled after their lifetime. By doing so, the family can avoid probate and maintain privacy during a difficult time. The person named as trustee in the trust can immediately step in to manage the property and make decisions about it. Since the trust is established and signed beforehand, the trustee does not need to wait for court approval, allowing the family to avoid delays and complications.

One key detail to note is that, on occasion, co-op boards may still request to review the documents before approving any sort of transfer or sale. As a result, when drafting the document, it is important to consult with a professional who ensures that the document complies with the co-op board’s expectations. If the owner and their family did not do the proper estate planning, the aftermath of the trust may look significantly different. The property would still be in the senior’s name, meaning that it becomes part of their probate estate. This requires their will to be admitted to probate, and the court will appoint the executor, who is named in the will. Until this process is completed, the property will not be transferred to the heirs, meaning it cannot be sold or rented out. It is best that families have a plan in place to avoid court intervention, as it is costly and time-consuming. Using a trust gives the family much more flexibility and peace of mind, avoiding the stress of uncertainty when dealing with a loved one’s property.

What you Should Do Next

If you or a loved one owns a co-op or condo, it’s important to start planning now. Review your Power of Attorney and will to ensure everything is properly accounted for. Consulting with a professional is essential. We will guide you through this complex process and help protect your property. Contact us today at (718) 333–2395 to gain peace of mind knowing you’re in good hands.

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.