Secure Your Future Using A Guardianship
Another aspect of your long-term care planning should include determining who can make decisions on your behalf should you no longer be able to do so. As we age, we sometimes can no longer competently make decisions for ourselves. It is a common practice for a loved one to step in to help guide their senior loved one for everyday functions. In these cases, guardianship may be the correct legal next step.
When an individual is named a guardian of another person, they become the primary decision-maker when it comes to personal care. The guardian has authority in selecting medical treatments, hospital care, at-home nursing, or even hospice care.
As a client of Ingold Law PLLC, you will receive the personalized attention that you and your loved one deserve regarding your planning for guardianship. Our Erie county attorneys understand this area of law in New York and are here for you every step of the way of these difficult decisions.
We can provide quality legal services in estate planning, trust planning, special needs planning, elder law, asset protection, probate, and estate administration in Buffalo, Amherst, and all surrounding areas. Contact our Williamsville office today to preserve your legacy and give you peace of mind for your family’s future.
What Is MHL Article 81 Guardianship?
An MHL Article 81 Guardianship is a way to help a person who cannot competently care for themselves by going to the courts to ask them to declare the person incompetent and appoint a guardian or guardians for them. This guardianship encompasses both stewardship over the person – health care and personal affairs – as well as guardianship over business interests, bank accounts, and other financial matters and property. One family member is often appointed to care for both duties, but sometimes the court may split the duties between two people.
Power to do this is granted through Article 81 of New York’s Mental Hygiene Law, hence the name “MHL Article 81 Guardianship.” Not all MHL Article 81 guardians named have the same powers. The court will tailor a guardianship order so that only those needs which the incapacitated person cannot themselves meet are handed over to the guardian. For instance, an incapacitated person may not be able to handle financial decisions but may be able to handle health care decisions. In this case, the guardian will only be granted financial power, not health care power.
This type of guardianship is distinct from guardianship over minors who do not have mental or physical incapacities. There is also another type of guardianship that can be used if a person is incapacitated due to mental retardation or developmental disabilities.
Furthermore, keep in mind that this type of guardianship is usually unnecessary if a durable power attorney and health care proxy have been signed. This is why attorney Elizabeth A. Ingold encourages all competent adults to sign these directives well in advance of need.
Still, if the worst happens and a loved one should become incapacitated due to mental illness, dementia, or an accident – or if a loved one is developmentally disabled and was never able to sign these documents in the first place – Elizabeth can help. Elizabeth has helped many trusted family members and friends to attain guardianship over incapacitated loved ones throughout Erie, Niagara, and Chautauqua Counties as well as all of Western New York.
A Guardian’s Powers In New York
Obtaining a guardianship, either through an incapacitated person’s estate plan or through an MHL Article 81 action, gives you significant powers and responsibilities. Here are some of the most important examples.
Paying Bills For An Incapacitated Person
This is one of the most common reasons for guardianship proceedings: the incapacitated person can no longer pay bills or manage their finances. Once guardianship is granted, the guardian can have the authority to collect assets, make investments, pay bills, and handle anything else the incapacitated person might have handled, had they the ability to do so.
Sometimes, incapacitated persons can no longer take care of basic activities of daily living – preparing food, taking medication, bathing, dressing, toileting, and more. Their homes may be accumulating dangerous levels of debris. A court-appointed guardian can be given the power to rectify this situation, whether by ordering a deep cleaning of the home, putting home care in place, or having the incapacitated person cared for by an institution such as a nursing home.
Stop Financial Abuse
Unfortunately, some people will take advantage of incapacitated persons by defrauding them of their hard-earned assets. A guardianship proceeding can freeze bank accounts and appoint a temporary guardian to ensure that no one but the court appointee can access the incapacitated person’s assets. The guardian may also be allowed to start an expedited proceeding to try to recover stolen assets.
Stop Physical Abuse
Financial abuse is not the only type of abuse incapacitated persons might face; sometimes, the abuse is physical. A court-appointed guardian can be granted the power to stop this type of abuse. The court may impose an injunction on the abuser or grant an order of protection, or the guardian may be able to start home care for the incapacitated, put the incapacitated person in a nursing home, or apply to family court for an order of protection.
Engage In Medicaid Planning
Caring for an incapacitated person can be very expensive, with costs running into the thousands every month. But it may be possible to have the incapacitated person qualify for Medicaid, so long as the assets can be transferred into a trust. A court can allow a guardian to begin the planning process under appropriate circumstances.
Is Now The Time For A Guardianship?
It is important to remember that every guardianship proceeding is unique and that guardianship orders are tailored closely to the incapacitated person’s needs. This is why it is essential to have a guardianship attorney by your side through this process so that you can work for the best possible outcome for your loved one. Furthermore, if you do not yet have a durable power of attorney or health care proxy for yourself, now would be an excellent time to make these essential plans – so that one of your loved ones will not have to go through what you are going through now.