Health Care Decisions for Guardians
October 15, 2019
When an individual is unable to make decisions for themselves, the court may appoint a guardian, who has the legal right to make decisions for them. Depending on the circumstances, a guardian may be charged with making property, welfare, and/or healthcare decisions for the incapacitated person (the ward). This presents many challenges, especially when the ward has not made their wishes clear prior to their incapacitation. At Korsinsky & Klein, LLP, we understand these concerns and are experienced in helping families navigate the complexities of guardianship law.
Guardianship in New York
Sometimes, the incapacitated person has a living will or a healthcare power of attorney that they executed prior to their incapacitation. However, typically a member of the incapacitated person’s family files for guardianship with the court. In New York, there are three main types of guardianship:
- Child – If parents become unable to care for their minor child, a guardian may be appointed.
- Incapacitated adult – An adult who was previously able to make decisions for him or herself may require a guardian in the event of injury or illness.
- Developmentally disabled person – A guardian may be appointed for those over the age of 18 who, due to developmental disabilities, lack decision-making capacity.
A guardian may be granted the power to make decisions pertaining to various aspects of the ward’s life. A “guardian of the person” makes decisions regarding the ward’s healthcare, education, and welfare, whereas a “guardian of the property” makes decisions about their money, investments, and savings.
Honoring the Incapacitated Person’s Wishes
Judges will assist guardians in making decisions about wards’ property, however when it comes to healthcare decisions, guardians are often on their own. Without an advance directive or living will in place, it can be difficult for the guardian to ascertain the incapacitated person’s wishes.
According to the New York Mental Hygiene statute, guardians should give the incapacitated person the greatest amount of independence and self-determination in light of their functional level, and consider their personal wishes, preferences, and desires. This raises potential ethical, spiritual, and emotional concerns for guardians when it comes to making healthcare decisions.
For example, if the ward does not have an advance directive, how will the guardian know if they want to receive cardiopulmonary resuscitation (CPR) or if they would rather be placed on a do-not-resuscitate (DNR) status? If the ward is suffering from an advanced illness, for how long should they be kept on life sustaining treatments? The Brooklyn guardianship attorneys at Korsinsky & Klein, LLP are here to help you work through the complexities of making healthcare decisions as a guardian.
Brooklyn Guardianship Attorneys at Korsinsky & Klein, LLP Assist Families with Guardianship
If you have questions regarding your responsibilities as a guardian or how to become appointed as a guardian, contact a Brooklyn guardianship attorney at Korsinsky & Klein, LLP. Our knowledgeable and compassionate attorneys are experienced in handling all types of family law matters, including those involving guardianship. For a confidential consultation, contact us online or call us at 212-495-8133. We represent clients throughout the state, including those in Manhattan, Long Island, and Westchester, New York from our offices located in Brooklyn, New York and Lakewood, New Jersey.