If you are in the early stages of dementia, Alzheimer’s or other debilitating and degenerative disease, you should act quickly to make a comprehensive estate plan, including execution of a durable power of attorney, health care proxy and living will (if you don’t already have one). Early-stage dementia/Alzheimer’s patients most likely still have capacity to make these important, financial- and health-related decisions. If you do not have these arrangements in place, and your disease progresses to the point where you are, or are becoming, incapacitated, you may be subject to a guardianship proceeding in a New York court.
Under New York’s Mental Hygiene Law, a guardian is a person (at least 18 years old), corporation or public agency appointed by a judge to manage (to the extent necessary) your personal needs and/or property. In this capacity, the guardian may be authorized to
make transactions for the incapacitated person;
transfer funds for payment of bills or to support dependents;
deal with Medicaid eligibility issues;
deal with estate and tax issues.
A guardian makes periodic reports to the court about the continuing condition of the person he was appointed to care for.
While you should seek legal counsel to help you, this is the basic “how to” of a petition for guardianship for someone else:
A guardianship case begins when a person files a petition claiming someone else is incapacitated. The petition must include a description of the alleged incapacitated person’s (AIP) functional abilities, i.e., what makes the person incapacitated, and what powers of guardianship this level of incapacity warrants.
The judge appoints an independent evaluator (can be a representative of mental hygiene legal service, an attorney, a physician, a psychologist, an accountant, a social worker, or a nurse), whose job is to meet, interview and consult with the AIP about the AIP’s condition and capacity to care for himself or herself.
The evaluator files with the court a written report with observations and recommendations.
The judge holds a hearing in the presence of the AIP (either at the court or where the AIP resides if he or she cannot attend court). During the hearing, any party may bring evidence about the condition of the AIP. Sometimes, there is a jury trial on the issues raised during the hearing, especially if the AIP wants to fight the appointment.
The judge will make findings and decide whether to appoint a guardian and will only do so if:
There is “clear and convincing evidence” of incapacity; and
The AIP is likely to suffer harm because of the incapacity.
Guardianship is a last resort, and a person is presumed to have capacity unless proved otherwise by clear and convincing evidence. But a judge may appoint a guardian for an AIP after finding:
“The appointment is necessary to provide for the personal needs of [a] person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of [a] person”; and
The AIP agrees to the appointment or the AIP is indeed incapacitated.
For purposes of guardianship, “incapacitated” means that a person:
Is unable to provide for their personal needs or unable to manage property and/or financial affairs; and
Cannot adequately understand or appreciate this inability to manage his or her affairs.
In reaching this conclusion, the judge will have many inputs, and will tailor any appointment to the specific circumstances of the individual. Consider the following examples:
AIP is 90 years old and has moderate dementia. She is able to pay bills and feed herself, but she lives in squalid conditions—her apartment is littered with trash and infested with bugs. She knows that it’s bad to live in these conditions, but doesn’t seem aware that she is doing so;
AIP is 62 years old and has had progressive Alzheimer’s for ten years. He lives on a pension, and keeps his living space neat. But he forgets to eat and pay bills, and even when he is reminded to do these things, forgets he was reminded after a couple of minutes; and
AIP is 74 years old and has mild Alzheimer’s. She is able to care for herself and pay bills, but she is becoming increasingly depressed and is afraid to leave the house.
Each of these individuals may need a guardian to a greater or lesser extent or not at all; the judge in a guardianship proceeding has the duty to tailor the appointment to give the person as much autonomy as possible and to structure the guardianship to be as nonintrusive to the individual as possible.
A judge will take into account many factors when appointing a guardian. If the AIP has expressed a preference and requested a particular guardian, the judge will generally agree.
