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How guardians are appointed to help those in need

If you have a loved one that can no longer handle their personal or financial affairs, what can you do to help them?  Hopefully, they have engaged in proper estate planning and have a power of attorney and health care proxy.  With a power of attorney in place, the power of attorney agent can help with their financial affairs.  With a health care proxy in place, the health care proxy agent can assist with health care decision making.

If there is no power of attorney or health care proxy in place, then what do you do?  If the individual is still mentally competent, there is still time to have them execute a power of attorney and health care proxy.   If the individual is no longer mentally competent, then you have to bring a petition to be appointed as their guardian.

Under Article 81 of the New York State Mental Hygiene Law, a guardianship petition may be brought if a person can no longer manage their personal or property affairs and they don’t understand their limitations.  The person’s limitations must also present a danger to their welfare.  

In a typical case, an incapacitated elderly person may not understand they can no longer cook safely because they can’t remember to shut off their gas stove, or they might be at a risk of home foreclosure because they can no longer keep track of their mortgage payments.  In guardianship parlance, the person who is the subject of the guardianship petition is known as the allegedly incapacitated person (AIP).

In such cases, a guardianship petition may be brought seeking the appointment of a guardian of the person and/or property of the AIP.  

Once the petition is before the court, a judge will appoint a Court Evaluator and potentially an attorney to represent the AIP.  The Court Evaluator is usually an attorney who acts as a neutral third party investigating the facts and reporting back to the court.  The Court Evaluator will report whether they think the AIP needs a guardian, and if so, who may be best equipped to take on that responsibility.  The attorney for the AIP will similarly investigate the case, but it is their job to advocate solely on behalf of the AIP.

Guardianship proceedings can become contested in the event the AIP doesn’t think they need a guardian or if a third party objects to the appointment of the guardianship petitioner.  Whether the proceeding is contested or not, the court must hold a hearing to determine if a guardian is necessary and who may be the best choice for the position.

In the simplest guardianship proceedings, a loving son or daughter seeks to be appointed as guardian for their mom or dad, the parent consents, and the court makes the appointment.  On the other side of the spectrum, guardianship proceedings may involve accusations of mismanagement by prior power of attorney agents and contests between family members as to who is best suited to act as a guardian.  If a petitioner is successful and the AIP has funds, the court will usually direct that the cost of the proceeding be paid from the AIP’s resources.

After the guardian is appointed by the court, they will receive a commission from the County Clerk, which acts as their proof of authority.  Within 90 days of their commission, the guardian must file an initial report with the Examiner of Guardianship Reports.  Every year thereafter, the guardian must file an annual report of their activities during the prior year.  These reporting requirements help ensure the guardian performs their responsibilities appropriately. 

Bringing a petition to be appointed as someone’s guardian should be done with the assistance of an attorney experienced in guardianship law.  Having capable counsel on board will ensure your loved one gets the critical help they need.

Matthew J. Dorsey, Esq. is of Counsel to O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY.  Over his eighteen years of practice, he has focused in the areas of elder law, estate planning, and estate administration.  Mr. Dorsey can be reached at (518)584-5205, This email address is being protected from spambots. You need JavaScript enabled to view it., and www.oalaw.com.

Most everyone knows that you need to name an executor in your Last Will and Testament, but unless you’ve acted as an executor yourself, you may not know what an executor actually does.

As a result, you may not know who would be appropriate to serve as the executor of your estate.

Who is the executor?

The executor is someone you name in your Will, who is appointed by the court to handle the administration of your estate.

Does the executor handle my assets?

After being appointed by the court, the executor “marshals” all of your assets – which means they control and protect them.

For instance, if you had a bank account before you died, the executor closes out the bank account and places those funds in an account in the name of your estate.

Does the executor handle my real estate?

Yes.

The executor has the duty to preserve your real estate so that it may be sold by your estate or potentially distributed to one of your beneficiaries.

Your executor will pay any necessary mortgage payments, tax payments, utilities, or other associated costs out of estate funds.

They will also make sure the property is insured and any necessary repairs or maintenance are performed.

Does the executor pay my bills after I die?

Yes.

The executor pays all rightful claims against your estate.

Your estate must remain open for seven months to allow possible parties with claims to come forward.

The first bill the executor will make sure is paid is your funeral bill.

Does the executor have to be a professional?

Many attorneys, accountants, or other professionals serve as executors, but you need not choose a professional to be your executor.

Who should I pick as my executor?

You should pick someone who is organized and will work cooperatively with the attorney for the estate to ensure the administration proceeds smoothly.

Can I choose more than one executor?

Yes.

You can have two or more executors.

You can also pick alternate executors so that if one is not available, a successor is available to do the job.

Does the executor
get paid?

The executor receives a statutory commission that is based on a sliding scale.

For an estate of $500,000 the commission would be $19,000.00.

For an estate of $1,000,000 the commission would be $34,000.00.

Executors can elect to serve without commission, and in cases where family members are chosen, executors often forgo any commission.

Do I need to tell my executor I chose them?

There is no legal requirement to do so, but as a practical matter you should.

That would give the person you chose the opportunity to advise you if they feel they cannot perform the job.

It is also sensible to assemble a list of your assets and to advise the executor where that list is maintained.

Choosing an executor for your Last Will and Testament is something that you should do with care.

If you have questions about whom you should select, you should consult an experienced estate planning attorney in your area.


Matthew J. Dorsey, Esq. is of Counsel to O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. 

Over his eighteen years of practice, he has focused in the areas of elder law, estate planning, and estate administration.

 

Mr. Dorsey can be reached at (518) 584-5205 and
This email address is being protected from spambots. You need JavaScript enabled to view it..

 

Preserving Assets and Income for the Spouse Living at Home

People often think that when their spouse is admitted to a nursing home that it will necessarily lead to financial ruin for the family.  This is not true, because the law provides that the spouse living at home can retain significant family assets and income.  The Medicaid authorities refer to the spouse living at home as the Community Spouse.  The spouse residing in the nursing home is referred to as the Institutionalized Spouse.

Exempt Assets for the Community Spouse

Medicaid rules allow the Community Spouse to retain the following assets as exempt resources:

— $74,820 to $119,220 in monetary assets

— the family home

— all the tangible personal property within the family home

— irrevocable pre-paid funeral arrangements

— one car

The $74,820 to $119,220 in monetary assets is referred to as the Community Spouse Resource Allowance (CSRA).  The $74,820 figure is a “floor” and the $119,220 figure is a “ceiling.” The actual CSRA amount for the Community Spouse will be within that range and determined by the overall nonexempt assets of the family.

If a couple has monetary assets in excess of the CSRA, Medicaid will require those funds to be spent on nursing home costs in order to reduce their assets to the CSRA – this process is referred to as a spend down.  If that couple owns a home, however, an acceptable alternative is to spend the money on necessary home repairs because the home is an exempt asset.  For example, $5,000 in funds in excess of the CSRA can be used to pay for a needed furnace replacement, instead of being spent down on nursing home costs.

Exempt tangible personal property includes all the furniture and furnishings in your home, i.e. tables, chairs, beds, jewelry, books, electronics, etc.  The only exception to the exemption would be items of special intrinsic value, like a collectible coin collection or valuable pieces of art.

Irrevocable funeral arrangements are also exempt, as is one car for the Community Spouse to use in the course of usual household activities.

Exempt Income for the Community Spouse

The Community Spouse is also entitled to $2,980.50 per month in income, which is known as the Minimum Monthly Maintenance Needs Allowance (MMMNA).  If the Community Spouse does not have that amount in their own name, they are entitled to income from the Institutionalized Spouse to reach the $2,980.50 level.  

For example, if the Community Spouse receives $1,500 in Social Security and the Institutionalized Spouse receives $2,000 in Social Security, the Community Spouse is entitled to $1,480.50 of the Institutionalized Spouse’s $2,000 in Social Security in order to reach the $2,980.50 MMMNA level.

Planning Opportunities

If your spouse is entering a nursing home and applying for Medicaid, you do not need to be impoverished as a result.  The rules regarding income and asset exemptions are complex, but they yield many planning opportunities to maximize the preservation of assets and income for the Community Spouse. 

To learn more, you should contact an experienced elder law attorney in your area and discover what planning opportunities are available for your family.  

 

Matthew J. Dorsey, Esq. is of Counsel to O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY.  Over his eighteen years of practice, he has focused in the areas of elder law, estate planning, and estate administration.  Mr. Dorsey can be reached at 584-5205 and This email address is being protected from spambots. You need JavaScript enabled to view it..

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