Dealing with Problems of Incapacity in New York

The Interplay of Guardianships and Advance Planning

I have received a number of questions recently regarding guardianships, powers of attorney, and health care proxies.  There is a certain amount of confusion about the interplay between them, and I have put together a set of questions and answers in an effort to shed light on that area of the law.

How do you plan for your potential incapacity?

The best way to plan for your potential incapacity is to have a power of attorney (POA) and health care proxy (HCP) in place.  A POA allows you to designate someone to handle your financial affairs and an HCP allows you to designate someone to handle your medical decision making.

Does your POA take effect immediately?

Your POA will take effect immediately, unless you put a condition in the modifications section of the document that delays the effectiveness until after a particular condition is satisfied.  You can insert a condition that the POA shall not take effect until you have lost your mental capacity.

Does your HCP take effect immediately?

No.  HCPs take effect after you no longer have the mental capacity to make your own health care decisions.  For example, if you were in the hospital and unconscious, then the HCP would take effect, and the medical providers would turn to your HCP agent to discuss what decisions should be made regarding your treatment.

What if you lose mental capacity and do not have a POA or HCP?

In those cases, someone close to you, presumably a family member or friend, could petition to be appointed as your guardian under Article 81 of the New York Mental Hygiene Law.

What does it mean to have a guardian?

Guardianships can vary depending on what your needs are.  If your incapacity is expected to be temporary, the court can appoint the guardian to serve for a limited time.  The court also has an obligation to tailor the powers granted to the guardian to be only those necessary to address the nature of your incapacity.  

What type of powers could be granted?

The guardianship powers fall into two broad categories – powers granted as guardian of the person and powers granted as guardian of the property.  The personal powers relate to decisions regarding medical care, where you live, and who you have contact with.  The property powers relate to the handling of your financial affairs, including the management of your assets and income.

What does it mean to tailor the powers?

The court has an obligation to grant only those powers to the guardian that are necessary based on the level of your incapacity.  If your incapacity is severe, as it would be if you were in a nursing home with advanced Alzheimer’s Disease, then the powers granted would be extensive.  If you were living independently, and perhaps just needed help with some financial matters, then the powers granted may be somewhat limited.  The court needs to be judicious with what powers it grants, because whatever powers it grants to the guardian are essentially taken away from the person under guardianship.

Does it matter if a POA or HCP are already in place?

As part of the guardianship proceeding, the court will determine whether a valid POA or HCP is already in place.  If one or the other or both are in place, the court has the authority to keep them in place if it wishes to do so.  For example, the court may determine that a valid POA is in place with an agent who is appropriate, and therefore the court might not authorize guardian of the property powers.  However, if that same court determines no HCP is in place and assistance is needed with medical decision making, then it could appoint a guardian of the person with the proper authority to act regarding medical care.

Can the court revoke a POA or HCP?

Yes.  If the court believes that a POA or HCP is being misused or the designated agents are not living up to their obligations, then the court has the authority to revoke those documents and appoint a guardian.

What is the best way to plan for incapacity?

Although guardianships play an important role in providing assistance to individuals who have lost their mental capacity, guardianship proceedings are certainly more expensive and time consuming than having a POA and HCP in place.  The other distinct advantage of having a POA and HCP in place is that you will be sure that the people you want will be making decisions for you.  If you become incapacitated without those documents, you might have someone seek to be your guardian whom you would not want to be in charge of your affairs.

Planning for mental incapacity is an important part of your estate plan.  It is advisable to obtain counsel from an experienced estate planning attorney to make sure that you are prepared should the day ever come when you need help with your affairs.

On a separate note, I am pleased to announce that our firm has recently added three experienced attorneys to our Trusts and Estates Department.  Steven Thomas, James Wighaus, and Anna Myers, all formerly attorneys with the firm of Lavelle & Finn, have joined O’Connell and Aronowitz.  They bring with them a wealth of experience in estate planning, estate administration, and business law.  We would like to welcome them, and we look forward to making their expertise available to our clients.

Matthew J. Dorsey, Esq. is a Shareholder with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his twenty-seven 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, mdorsey@oalaw.com and www.oalaw.com.