Q: If my mother becomes ill and unable to take care of her own affairs, how can I make sure my mom is properly taken care of and her bills are paid? Will I need to become her guardian?
A: A Guardianship is a type of court proceeding in which one can be appointed to have certain powers over an incapacitated person with regard to their personal needs and/or property management. However, a guardianship proceeding is not always required when a loved one requires assistance. There are other options.
A proper estate plan will often include a power of attorney, health care proxy, and living will. These documents enable the appointed agent(s) to manage both the care and finances of the individual without having to initiate a court proceeding. If your mother has the capacity required to understand and sign these documents then she should consult with an attorney to put her plan in place. It is best to get these documents in place as soon as possible so that the appointed agent or agents of her choosing can be lined up to assist when necessary.
If your mother’s condition is such that she lacks the capacity to execute any estate planning documents, you may have to initiate a guardianship proceeding. This court proceeding is held under Article 81 of the New York State Mental Hygiene Law and takes place in Supreme Court. As petitioner, you can request to appoint yourself or another person as guardian. You have the ability to request that the Court appoint a guardian over the person and/or property. A personal needs guardian can be granted powers to make decisions regarding mom’s health care and personal care. Powers granted to a property guardian can include managing the day to day finances, maintaining financial accounts, paying expenses, hiring professionals such as accountants or financial advisors, and the ability to apply for government benefits that she may be eligible for.
Your petition will detail the reasons why you believe your mother is unable to manager on her own, why a guardian should be appointed on her behalf, and why she will likely suffer harm if a guardian is not appointed. Once the petition is submitted, the judge will assign a court evaluator to the case to meet with your mother and anyone else who may have information about her condition. The evaluator will assess your mother’s situation and investigate the circumstances that form the basis of the petition. Upon completion of the investigation, the evaluator will report back to the Court and give his or her recommendations, to which he or she will testify to at a hearing. All interested parties, which will include other immediate family members and your mother’s siblings, if living, will also get notice of the petition and be interviewed by the court evaluator.
A hearing will be scheduled where all parties, including your nmother if she is able to attend, will have the opportunity to come to court and either testify in favor of your appointment as guardian, object to the proceeding, or testify as to why someone else should be appointed as guardian. After the hearing, the Judge will determine if a guardian is necessary, and what powers will be granted. Each guardianship proceeding will be tailored to the case at hand. The Court will use a ‘least restrictive means’ standard to ensure that the individual remains as independent as possible to the extent they are capable of making their own decisions.
The advice of an attorney can be helpful to your mother if she wants to plan for possible incapacity and helpful to you if she has lost the ability to make these decisions on her own.
- Michal Lipshitz, Esq. and Nancy Burner, Esq.