A Guardianship proceeding is not something that is typically commenced unless there is a true necessity. It is a last resort mechanism for when someone is no longer competent to make their own personal and financial decisions, and has not executed a sufficiently broad Durable General Power of Attorney and a Health Care Proxy. Here are six factors to consider prior to commencing and filing the proceeding:
(1) Determine whether the Alleged Incapacitated Person (AIP) has executed a valid Durable General Power of Attorney (POA), Health Care Proxy (HCP), Living Will and HIPAA form. The existence of the aforestated advance directives may obviate the need for a Guardianship Proceeding if they are sufficiently broad enough to deal with the issues present in the particular case at hand. For example, in many instances a valid POA has been executed, but, the POA is not sufficiently broad to address the AIP’s financial needs. There may be an immediate need for broad gifting powers for Medicaid and or estate planning purposes where the POA only permits gifting to specific people and in a limited dollar amount, such as $500 or less.
(2) Review how title to the AIP’s assets is held. Does the AIP have assets in joint title with others? If so, can these assets be accessed by the joint title holder if the AIP is not able to make decisions as to his or her financial affairs? If so, a Guardianship proceeding may not be necessary as to those assets.
(3) Has the AIP executed a Last Will and Testament or an Inter Vivos Trust? If a Last Will or Inter Vivos Trust are in existence, it will be important to determine whether or not any proposed transfer or disposition of the AIP’s assets sought in the Guardianship Proceeding is consistent or inconsistent with the AIP’s wishes expressed therein. If a beneficiary(ies) under an existing Last Will or Trust is affected by a proposed transfer, he or she will be entitled to notice of the Proceeding and a right to be heard.
(4) Prior to filing a Guardianship Proceeding it is important to determine whether the powers the Guardians will seek will be of an “unlimited” or “definite” duration. Obviously, a critical factor as to the duration of the Guardianship will be whether there is a likelihood that the AIP will be able to handle his or her financial affairs at a later date. Additionally, it will be necessary to determine whether there are any specific or special powers over the person or property that the Guardian requires that are not enumerated as part of the standard powers provided for under the Mental Hygiene Law. For example, perhaps the Guardian needs the power to relocate the AIP to another state or wishes to make gifts or transfers of the AIP’s property. Such powers must be specifically granted to the Guardian, sometimes in a separate proceeding.
(5) Does there exist the possibility that the Guardianship will be contested? The possibility that the Guardianship will be contested will have a significant and important impact on whether or not to commence the Proceeding. It is always a difficult decision to commence a Guardianship for one’s father or mother, but, the decision is made significantly more difficult when the Petitioner knows or believes that mom, dad or a sibling will contest it. Voluntarily placing oneself into a litigious proceeding with a parent or a loved one may have significant consequences depending on the level of mental capacity of the AIP.
(6) Is the appointment of a Temporary or Independent Guardian advisable? In cases where there exists a significant possibility for either personal or financial harm to the AIP because he or she is unable to handle his or her affairs, it may be advisable to request that the Petitioner(s) or an independent third party be appointed a Temporary Guardian pending the final determination of the Court. This is often utilized when there is an immediate need to marshal the AIP’s assets to prevent waste, dissipation or fraud, or where there is an immediate need for someone to handle the Alleged Incapacitated Person’s personal and financial affairs. Additionally, in a contested guardianship setting, an independent non-related third party may be appointed as the guardian of the AIP in a final order by the Court in order to avoid any parties to the matter from making decisions regarding the AIP, where they cannot come to an agreement as to what is in the AIP’s best interest and who should act as the Guardian long term.
In conclusion, although the aforestated factors are not the only factors that one should consider prior to commencing a Guardianship, in my experience they are often the most important!
