• Are there alternatives for managing property when a person becomes incapacitated?
• What is a guardianship (sometimes called a conservatorship)?
• What are the disadvantages and advantages of a guardianship?

Are there alternatives for managing property when a person becomes incapacitated?

There are several. One a court-supervised proceeding referred to as a guardianship or conservatorship. This is not an appealing option to most people. One type of alternative is the use of a living trust where assets are funded into the living trust. However, a power of attorney is still essential even if you have a living trust. A person who has already become mentally incapacitated cannot create a trust, although their agent under a power of attorney may be able to do so if the document allows it.

What is a guardianship (sometimes called a conservatorship)?

This is a court supervised proceeding which names an individual or entity to manage the affairs of an incapacitated person. A guardianship may also include the duty to care for the incapacitated person.

Are you caring for someone who is no longer capable of making their own decisions? Is your family member or friend confused to the point that they are at risk of making dangerous financial commitments or decisions? Are they failing to take care of themselves, or failing to eat or seek medical treatment? Are they at risk of injuring themselves, or are they suffering from a lack of care and unwilling to receive help? If someone you care for becomes incapable of making decisions for themselves, then what? If they have a valid Power of Attorney, their agent can exercise the powers granted for paying bills or prosecuting a legal action for the principal. Without Power of Attorney, or if the Power of Attorney does not include the powers necessary to enable the caretaker to fully handle the necessary personal business of the principal, then the caretaker may have to petition the court to become “guardian of the property” of the principal. Further, if the incapacitated person is also incapable of making appropriate health care decisions for themselves, or has become neglectful of their health and welfare and become at risk of injuring themselves, then the caretaker may also petition the court to become “guardian of the person” of the principal.

Guardianship over a person or their property is a very significant step that is recognized as reducing the personal liberty of the incapacitated person, but in the interest of their welfare. It is a decision that the Court does not take lightly. A guardianship proceeding requires the person seeking guardianship to prove that the “alleged incapacitated person” is indeed lacking the mental capacity to make decisions that are appropriate for their financial or personal welfare. New York State’s Mental Hygiene Law, Article 81, governs guardianship proceedings.

Article 81 of the NYS Mental Hygiene Law was adopted in 1993 to enable the court to determine what powers the caretaker must have to protect the person and the property of the incapacitated person, and yet interfere as little as reasonably possible with that persons “right to self determination”. A guardianship action is brought in Supreme Court or County Court, although under certain circumstances involving property management the action may be brought in Surrogates Court. Generally, the action must be brought in the county in which the allegedly incapacitated person resides or is present.

The court requires “clear and convincing” evidence – the highest threshold in civil cases – to be presented that the principal is likely to suffer harm as a result of the incapacity to care for his or herself, and that he or she does not understand the consequences of his or her incapacity. Sadly, sometimes people we care for seem to be the most obstinate when they can no longer clearly make decisions for themselves. However, just because someone is eccentric, or their opinions and preferences are unconventional, certainly does not mean they are incapacitated!

Article 81 requires the court to look carefully at the allegedly incapacitated person’s functional limitations, and if those limitations indicate that the person is at risk of neglect by him or herself or others, to appoint a guardian with the power to care for the person under the least restrictive circumstances.

Why not let caring for you become someone else’s problem? Because if the person or persons trying to care for you have to petition the court for guardianship of you, and they succeed in proving that guardianship over you is necessary, the cost will ultimately be paid for out of your own assets and the person awarded guardianship might not be the person who you would have ed. Why leave it for others to decide?

Caring for our loved ones after they have become incapacitated can be a complex and legally troubling task. With so many difficult financial and health related decisions to be made, having an effective guardian in place can limit the time it takes to make important choices.

What are the disadvantages and advantages of a guardianship?

A primary disadvantage to a guardianship is that it is a public proceeding, thereby exposing the incapacitated individual to embarrassment as the details of their incapacity are discussed at length. It is also expensive, and is a restrictive procedure. In addition, there is no guarantee that the end result will be in accordance with the incapacitated person’s wishes, and someone unacceptable to the incapacitated person could be placed in charge of his or her affairs. A major advantage to a guardianship is that the courts watch every move the guardian makes in relation to the assets. Therefore, this provides increased protection it also establishes the authority of a guardian in relation to third parties. However, ongoing court supervision also increases the expense of maintaining the guardianship.