New York Estate Planning & Elder Law Blog
As we continue to age, it can be difficult to admit when you are no longer able to handle personal affairs and financial matters on your own. There are a number of alternatives available to those seeking to have their affairs managed by another party, depending upon the individual’s mental capacity to comply with assigning these rights. Those providing caregiver services to the individual, commonly a loved one, may seek retaining legal guardianship of the elderly individual, assigning durable power of attorney and health care power of attorney to specific individuals, or establishing a trust.
Guardianship
Guardianship is a legal status given by the court to create a relationship between someone who is incapacitated or unable to care for themselves and a person determined to be suitable to administer and manage the incapacitated person’s affairs. In order to get a guardianship order, a person must file a petition with the court to review the case at hand. The court assesses the situation, the petitioner, as well as the elderly person to determine what will be the least restrictive method of guardianship. The appointment may include only managing financial affairs, but may also assign responsibility for day to day decision making including support, maintenance, and personal care.
In order to make this determination, the court will require a medical evaluation of the guardianship application by a physician or court authorized health care professional. Depending on the capacity of the individual in question, the court may ask their opinion about having this particular person appointed to handle their various matters. There are limitations on many aspects of guardianship that should be assessed prior to appointment; for instance, if the guardian is in charge of financial affairs, they must apply for court permission to use the elderly individual’s money for their benefit. Additionally, they must make periodic accountings of the guardian’s funds to provide the court for review to ensure they are not spending frivolously.
The assigned guardian will be charged with maintaining the elderly individual’s standard of living to remain consistent with what they previously have expected and must also adequately meet medical and other needs requested. In the event that loved one or the court suspects improper management of the account, they can petition for the removal of the guardian by the court. Depending upon the validity of the allegations of improper management, the guardian can face a number of criminal or civil charges due to their actions.