Is Adult Guardianship Appropriate? Four Facts To Help Guide You
If you’re trying to figure out if adult guardianship is the proper solution for a family member or friend, there are a few basic facts that can help point you in the right direction. We realize there is a lot of information online that can cause more confusion than guidance – legal proceedings can seem complex. However, the following questions can serve as a starting point in order to inform subsequent conversations if you choose to contact the guardianship team at The Donaldson Law Firm, PLLC.
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(For the purpose of this content, any person for whom you’re thinking the appointment of a guardian might be appropriate can be respectfully referred to as an “AIP,” which stands for an “allegedly incapacitated person” as defined by NY Mental Hygiene Law Article 81.)
First, is the AIP a New York State resident? If so, a guardianship proceeding in New York would be proper. Even if an AIP has been admitted to a hospital or discharged to a rehabilitation / skilled nursing facility in a neighboring state but owns property in New York and/or plans to return home to New York, then a court in New York is the appropriate venue.
Second, is the AIP unable to manage his or her activities of daily living without assistance? Activities of daily living (ADLs) are the basic tasks one needs to be able to do to care for oneself on a daily basis. These are the things that most people take for granted, but they are essential for independent living, including but not limited to bathing, dressing, preparing meals, managing finances, etc. If the AIP is unable to manage some or all of their activities of daily living, then guardianship may be appropriate.
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Third, did the AIP ever sign a power of attorney or health care proxy. This is important because, under NY law, a guardianship is considered a last resort. If an AIP previously signed a power of attorney, then the AIP planned for his or her eventual incapacity and named an agent to manage his or her financial matters on their behalf. Similarly, by signing a health care proxy, the AIP appointed an agent to make health and medical decisions on their behalf in the event they’re unable to do so themselves, thereby making the appointment of a guardian unnecessary.
Finally, if the AIP did not sign a power of attorney or health care proxy (or if you do not believe he or she did so), successfully maintaining a guardianship case will also turn on identifying what harm will befall the AIP if the court does not appoint a guardian. For example, if the AIP has significant income and assets but does not have a power of attorney, then no one will have the requisite legal authority to create a trust on behalf of the AIP to qualify for Medicaid benefits. Even worse, if you suspect the AIP is currently being subjected to financial abuse at the hands of a stranger or even another family member, you will likely be powerless (from a legal perspective) to prevent it absent the appointment of a guardian who would have the authority to marshal and protect such income and assets.
All that said, if the AIP is a resident of New York State, is unable to manage his or her activities of daily living, did not sign a power of attorney and/or health care proxy, and will suffer harm if a guardian is not appointed, starting a guardianship proceeding might be the proper solution.