Caregivers

As our parents and grandparents age issues may arise as to their ability to manage their affairs. As a caregiver to an older person you have a number of legal options to assist you in providing care for your loved ones.

Power of Attorney

Most of us are familiar with a power of attorney. A power of attorney is a legal document in which one person, the “principal”, gives another person, the “agent”, power to act on the principal’s behalf. The power can be as broad or as limited as the principal wishes. The document will usually spell out what specific actions the agent can take, and for what period of time.

For instance the power of attorney may give the agent the power to pay bills, and do banking, and negotiate contracts, and make decisions regarding selling real estate. Or it may be as limited as the power to act on behalf of the principal one time for one event - e.g., attendance at a real estate closing to sign the appropriate documents and collect the sales monies.

Issues with Use Of Power of Attorney

Often times what triggers the desire to have a power of attorney drawn up is an older persons inability to continue to do their banking or pay their bills consistently. A bank employee may tell you to obtain a power of attorney so that you can withdraw funds and conduct other business on behalf of your family member.

One of the biggest problems with using a power of attorney is that if a principal lacks the capacity to manage their affairs, it can also be argued that they lack the capacity to sign over their rights to an agent. The issue of the principal’s capacity at the time of signing can become very important later on if anyone challenges the agent’s actions. If it can be shown that the principal did not have the capacity to understand what rights they were assigning to the agent under the power of attorney, the power of attorney can be deemed void, and the agent’s actions can be voided. Because of this weakness in the use of a power of attorney, it may be appropriate in certain circumstances to have a principal declared incapacitated, and the agent appointed as the principal’s legal guardian.

Legal Guardianship or “General” Guardianship

Legal guardianship is the mechanism by which a court grants one person legal authority to manage the affairs of another person who the court has determined is legally incapacitated. The process is as follows:

1. The petitioner, who is usually a family member of the incapacitated person, meets with a lawyer to discuss the incapacitated person’s family background and history, and present circumstances and medical condition.
    
2. Arrangements are made for the allegedly incapacitated person to be examined by two physicians to determine their capacity to manage their own affairs.
    
3. If the physicians determine that the allegedly incapacitated person is unfit or unable to manage their affairs the physicians draft affidavits stating their findings.
    
4. The lawyer prepares a petition, which is filed with the court, outlining the allegedly incapacitated person’s background, income, and assets. The doctor’s affidavits are attached to the petition.
    
5. Notice of the petition is forwarded to interested parties - usually other family members.
    
6. The court reviews the petition and other paperwork submitted, and appoints an attorney for the allegedly incapacitated person. The court also sets a hearing date.
    
7. The attorney for the allegedly incapacitated person meets with the allegedly incapacitated person and attempts to learn what the alleged incapacitated wants. Do they approve of the guardianship? Are they comfortable with the proposed guardian? The attorney has a duty to report to the court, in writing, as to whether they recommend that the court grant the petition for guardianship.
    
8. At the hearing the court takes testimony, if necessary, and decides whether the petition for guardianship should be granted. At times the evidence is strong enough that the court can make its decision based on the papers submitted, without a hearing. The court also decides whether the guardian should serve with or without a bond.
    
9. Once the court declares that a general guardianship should be granted a judgment of guardianship is signed, the guardian meets with the Surrogate and letters of guardianship are issued to the guardian.
    
10. The guardian has the duty to manage the incapacitated person’s affairs. The guardian also has the duty to provide a status report to the court on a periodic basis, usually each year, which is called an Annual Report of Guardian.

Other options, other than a general guardianship, are a limited guardianship or a conservatorship.

A limited guardianship is a guardianship for a situation in which the court finds that an individual is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself. When establishing a limited guardianship the court makes specific findings regarding the individual's capacity, including, but not limited to which areas, such as residential, educational, medical, legal, vocational and financial decision making, the incapacitated person retains sufficient capacity to manage. The judgment of limited guardianship will specify the limitations upon the authority of the guardian.

A conservatorship is appropriate in a situation in which a person is unable to care for or manage his or her affairs, but they have not been judicially declared incompetent. The person’s inability to manage their affairs may be by reason of advanced age, illness or physical infirmity.

Some of the Key Terms Involved in Guardianship Law Are Set Out Below:

“Incapacitated individual” means an individual who is impaired by reason of mental illness or mental deficiency to the extent that he lacks sufficient capacity to govern himself and manage his affairs. The term incapacitated individual is also used to designate an individual who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism or other cause (except minority) to the extent that he lacks sufficient capacity to govern himself and manage his affairs.

“Guardian” an individual who is appointed by the court to be responsible for the management of the affairs of an incapacitated individual.

"Conservatee" means a person who has not been judicially declared incompetent but who by reason of advanced age, illness or physical infirmity, is unable to care for or manage his property or has become unable to provide for himself or others dependent upon him for support.

"Conservator" means a person appointed by the court to manage the estate of a conservatee.

"Ward" means an individual for whom a guardian is appointed or an individual under the protection of the court.

If you have any questions regarding petitioning for guardianship of a family member or friend, do not hesitate to contact me at (800) 274-6180, (201) 541-6477, or through our online form. I will review your situation and give you a realistic sense of your rights, options, and estimated costs in terms of time and money.

Guardianship Forms

Model Incapacitated Person Guardianship Judgment

Annual Report of Guardian