In a recent guardianship case, the Second Judicial Department reversed the Supreme Court Judge’s decision to terminate, sua sponte, the guardianship of the incapacitated person (IP), as the judge should not have done so without holding a hearing.
Under Article 81 of the Mental Hygiene Law, a guardianship may only be terminated by application of the guardian, the IP, or any other individual who is entitled to initiate a proceeding. However, the court terminated the guardian’s request for guardianship without a hearing, as well as the motion for leave to request a change of residency for the IP from New York to an assisted living facility in Greece. The Second Judicial Department determined that the guardian’s motion will be granted for guardianship, for leave, and for the change of residence.
What is the Background of the Case?
In April of 2018, the IP’s guardian was asked to be appointed guardian of the IP in order to manage a property in Greece. Following a hearing, the Supreme Court found the IP to be incapacitated according to Article 81 of the Mental Hygiene Law. As a result, the court approved the request for guardianship.
In September of 2018, the IP developed health issues and was unable to communicate in English. As a result, the IP was admitted to an assisted living facility in Greece.
In November of 2018, the guardian requested that the IP’s residency be changed from New York to the assisted living facility in Greece while continuing to maintain residency in New York. The court denied the motion without a hearing, and terminated the guardianship sua sponte, citing a lack of ongoing connection between the guardianship and New York.
According to the Second Judicial Department, the Supreme Court should not have terminated the guardianship without conducting a hearing. In addition, there was sufficient evidence provided by the guardian to show that the change of residency was in the IP’s best interest. As a result, the Supreme Court should have granted this request as well.
What Do I Need to Know About Guardianship for Incapacitated People?
According to Article 81 of New York’s Mental Hygiene Law, the courts may appoint a guardian to help manage an individual’s personal and financial affairs if they become incapacitated. Depending on the specific needs of the person who is incapacitated, guardianship orders are tailored to meet those needs. For example, some people who are deemed incapacitated may only require limited assistance, and the court may appoint the guardian power to make decisions that are limited to financial management.
For individuals who are severely incapacitated, the court may grant a guardian full financial management power, as well as the power to decide if and when the IP should be moved to a nursing home or a long-term care facility.
What are the Responsibilities of a Guardian?
The responsibilities of a court-appointed guardian vary widely, depending on the circumstances and the degree to which the person is incapacitated.
The following are examples of some of the important responsibilities a guardian may have and the decisions they will have the authority to make on behalf of the IP:
Assistance with Finances: When physical or mental incapacity prevents someone from being able to pay their bills, a guardian can be appointed to help remedy the situation. This can involve paying all bills on time, collecting assets, making responsible investments, and other financial decisions that the IP would likely make if they were able to do so.
Authority to Ensure that the IP and the Home is Clean: It is not uncommon for IPs to either lose interest in or become incapable of completing basic daily activities, including grooming, bathing, getting dressed, using the toilet, preparing meals, and keeping their home clean.
A guardian has the authority to enter the home, arrange for home health care providers and cleaning services, and ensure that the IP is being properly cared for on a regular basis. In extreme cases, the guardian may need to make the difficult decision to place the IP in a residential care facility if it is no longer safe for the IP to remain in the home.
Authority to Stop Physical Abuse: Unfortunately, there are instances where greedy, unscrupulous friends or family members will physically abuse an IP. This appalling behavior can go unnoticed if the IP is unable to move or communicate.
If abuse is suspected, a guardian has the authority to take the appropriate steps to protect the IP and stop the abuse, including:
- Obtaining a court injunction that requires the abuser to immediately stop the abusive behavior.
- Implementing a home care plan that protects the IP from abuse.
- Placing the IP in a residential home.
- Granting an order of protection.
- Granting the authority to apply to the family court for an order of protection.
Assistance with Medicaid Planning: Caring for an IP can be extremely costly, particularly if the individual is severely incapacitated. Home health care and placement in residential care facilities can cost thousands of dollars per month. A guardian can help obtain Medicaid eligibility for some of these services if the IP’s assets can be transferred or placed into a trust. A court can provide the authorization necessary for a guardian to obtain Medicaid eligibility on behalf of the IP. Additionally, a lawyer can assist in Medicaid planning.
Assistance with Tax Planning: This generally applies to IPs who have considerable wealth. While the IP is still living, they may wish to offer financial gifts to family members since it can be advantageous for estate tax reasons. A guardian has the authority to assist the IP with this process and help avoid costly tax penalties.
How is a Guardian Appointed?
If an individual wishes to be appointed guardian for an IP, a petition must be filed with the court by a petitioner. Once this is filed, a court evaluator will conduct an investigation and submit a detailed report about the case, including an opinion as to whether it is necessary for the individual to be granted guardianship. The petition is filed in the court, a hearing date is set, and close family members of the IP are notified.
At the hearing, the petitioner will be required to present clear evidence that the IP is no longer able to manage certain aspects of their affairs. The court evaluator also presents the report. In most cases, the court will render a decision after the hearing.
Who Can be a Guardian?
In most cases, the court gives preference to family members, the petitioner, and nominees of the IP when it comes to appointing guardianship roles. If, however, family members cannot agree on who should serve as guardian, the court will step in and appoint an independent guardian from a list that is maintained by the court.
The person who wishes to serve as guardian must obtain a bond in an amount that is decided by the court. This acts as an insurance policy that is paid for out of the IP’s assets. It helps protect the IP from any theft or other malfeasance by the guardian. If the bond cannot be obtained for some reason, the court will likely appoint an independent guardian.
Any individual who wishes to serve as a guardian for a family member or close friend must complete a course where the responsibilities and duties of the guardian are explained in detail. Some examples of specific duties that are expected:
- Filing an initial report within 90 days of being appointed guardian. This should include a brief summary of the IP’s status and a complete list of the IP’s financial assets.
- Filing an annual report with the court by May 31 of each year. The report must provide detailed information about all income and disbursements from the previous calendar year.
- Submitting a final report upon termination that summarizes the length of the guardianship and the activities that were performed during the guardianship.
- Visiting the IP at least four times per year.
How Can a Lawyer Help with a Guardianship?
An experienced lawyer can help with the legal process of the guardianship and establish what is expected. It is important to speak to a lawyer before beginning the guardianship process to ensure that it goes smoothly.
Westchester Guardianship Lawyers at Korsinsky & Klein, LLP Assist Families with Every Phase of the Guardianship Process
As family members age and their health begins to decline, it can slowly impact their ability to effectively manage finances and make important decisions about their health. While this is difficult for everyone involved, one of the best things that family members can do is to contact one of our Westchester guardianship lawyers at Korsinsky & Klein, LLP. We are committed to protecting those who can no longer advocate for themselves. For an initial consultation, call us at 212-495-8133 or contact us online. Located in Brooklyn and Manhattan, New York, and Lakewood, New Jersey, we serve clients throughout New York and New Jersey.