new york guardianship lawyer

INCREASING IN FREQUENCY

Guardians across the country are beginning to grapple with a larger phenomena of life in these United States: that we are a mobile society. Many times these decisions are made by legally competent adults who have the right to decide where they want to live. When it comes to the decisions of an older population, those decisions are animated by such things as access to good health care, location of relatives and loved ones as well as climate and quality of life. Many of those same elderly citizens who move are only in their current location because they may have recently retired and that is where they worked for several decades. Family and home may be elsewhere. It is very common for people to have family that they are close to strewn out across the country, allowing such people a number of locations and climates to chose from. These same facts and drives also apply to people who are involved in adult guardianships. It is not uncommon for these individuals to move from one jurisdiction to another to obtain specialized treatment. With an aging population, these issues are only increasing in frequency.

One would assume that a Court in one state would honor a judgment of guardianship from another. After all the federal Constitution requires states to grant full faith and credit to the judgments of sister states. Often this is the case, but not always. Different standards apply in different states and questions and concerns may arise when one state’s laws require a guardianship to be vacated when the original state contemplated that it would last for life due to the first state’s different laws and the guardian made plans accordingly. How does that influence the issue of continued care? How does the lack of capacity of the protected party affect the decision of the Court? Moreover, when does one state assert jurisdiction and the other relinquish? Courts cannot enter an Order without jurisdiction. Some nightmare scenarios could play out, as they did in the Alabama case of Sears v. Hampton in 2013, without some basic standards to tell Courts how to measure its decisions.

No one likes to consider the fact that they may one day need help in managing their affairs, but the fact remains many people will need a fiduciary they can trust to act on their behalf when incapacitated. Typically as part of an estate plan, an individual will execute a power of attorney appointing one or more individuals of their choice to manage their health care decisions and financial matters in the event they can no longer handle their own affairs. Powers of attorney can vary in scope and purposes, and can serve as one method to avoid judicial intervention, including guardianship or conservatorship proceedings.

Guardianship Proceedings

When a health care or financial power of attorney are not sufficient or absent from an estate plan, a guardianship or conservatorship proceeding may be necessary to appoint someone to represent the person suffering an incapacity. In New York, a proceeding for guardianship can be commenced by a variety of parties, including, a distributee of the incapacitated person’s estate, certain fiduciaries, an interested party concerned with the welfare of the individual, or the incapacitated person himself. Incapacity is determined by clear and convincing evidence that the individual is unable to manage their own affairs and is unable to understand the consequences surrounding their inability in such a way that will likely cause harm to themself or others.Courts will consider a variety of factors when selecting a guardian, including the incapacitated person’s specific needs and the capabilities of the proposed guardian in meeting those needs.

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INTERSTATE ADULT GUARDIANSHIPS

Who will Manage Your Affairs in the Event You are Incapacitated?