GUARDIANSHIP – A LAST RESORT
Dec 7, 2015 | Guardianship|
In New York State, Guardians are only necessary when a person needs assistance with their Activities of Daily Living (managing their personal and financial affairs) and that person either consents to the Guardian being appointed, or the court finds them incapacitated and incapable of caring for themselves or consenting to the Guardian. Incapacity is only found when a person is unable or unwilling to provide for their own needs, when that person also cannot adequately understand or appreciate their inability to provide for those needs, and that person is likely to suffer harm as a result of being unable or unwilling to tend to those needs.
For instance, a person with Dementia or Alzheimer’s disease would eventually, as their disease progresses, become unable to care for their own needs and, more than likely, become unable to recognize that not caring for those needs will result in harmful consequences. They would, then, in accordance with the New York statute, be considered legally incapacitated.
However, the court may not appoint a guardian for someone even if they are deemed incapacitated as long as there are already methods in place to prevent that person from actually suffering any harm. For instance, if the Alzheimer’s patient already has Community Medicaid in place, is being tended to by home care aids, has a stable, loving, and supportive family environment, and already has agents working on their behalf under Property Powers of Attorney and Health Care Powers of Attorney, that person who would otherwise be incapable of caring for themselves would already have a system in place to prevent harm from coming to them. They would actually not then be considered “unable or unwilling to appreciate their inability,” even if they no longer remember that they need the care to prevent harm, because, while they were able to appreciate it, they put a system in place to protect themselves from needing court interference in their life. Therefore, they would not, and should not, be found to need a Guardian.
Guardianship is a last resort method of caring for a loved one who otherwise cannot care for themself. This is why pre-planning/estate planning early is so important. Having your agents in place, and other elder law planning documents in place, allows you to age with dignity and autonomy, even when your body is working against you.
If you or a loved one are interested in learning more about the kind of pre-planning you can do to help prevent the need for an MHL Article 81 Guardianship and proceeding, please contact COHEN & COHEN PERSONAL INJURY LAWYERS, P.C. to speak with a knowledgeable Guardianship attorney. Call (718) 275-7779 today and get the information you need to feel more secure about your future!