How Will Decisions Be Made If I am Incapacitated? Part 2: GuardianshipIn a previous blog, we discussed the important documents—healthcare proxy, living will, and power of attorney—that allow you to appoint people to make healthcare, legal, and financial decisions on your behalf should you become incapacitated. If you have not finalized those documents before you become mentally or physically unable to make decisions, then a guardianship proceeding will take place.

Most likely, it will be a Mental Hygiene Law, Article 81, guardianship proceeding. All interested parties will be given notice that a petition for guardianship has been made to the court. The court then determines whether a guardian should be appointed, what powers that guardian should have, and who should be the guardian. Families and loved ones can petition for what they want, but it is ultimately up to the court to make the determination.

If you do not have healthcare directives, and you are already in a hospital, nursing home, or hospice, a New York State law called the Family Healthcare Decisions Act will enable a surrogate to step in and make healthcare decisions in just those settings. Doctors’ offices, dentists’ offices, ambulances, and clinics are not covered under the statute.

This law creates a hierarchy of who the surrogates should be and gives them directives on how to act. The hierarchy is as follows:

  • A guardian appointed by the court
  • A spouse
  • A son or daughter
  • A parent
  • A brother or sister
  • A close friend

This hierarchy may not be your preference. For example, you may not want an estranged spouse making these decisions. Perhaps you have not seen them in ten years and are not on good terms. Suddenly, they are contacted by a hospital because they are next in line to make urgent medical decisions for you. That is not an ideal situation.

On the other hand, guardianships have many benefits. A guardian will be appointed to protect your assets from loss or waste. They have the ability to access your money to pay for your expenses and can implement additional planning on your behalf, if need be.  They may also make decisions about personal care, dental and medical decisions, and applications for government benefits, including Medicaid.

Guardians also have the power to make living arrangements for their ward. A healthcare proxy, living will, and a durable power of attorney do not authorize your designated agents to make living arrangements for you. That means that if an incapacitated but stubborn mom or dad lives at home and needs to go into a nursing home or assisted living facility, a child who is the healthcare proxy and power of attorney cannot make them move without a court order. But if the child is also the guardian, they do have the authority.

The bottom line is that you and your loved ones need to plan ahead. Otherwise, you could end up in an unfavorable situation. You might lose a lot of money. The situation could cause turmoil between your family members. And if you do not plan in advance, you are subject to a guardianship which could cause the laws of the State of New York to make decisions that you would not make and would not want.  

Contact the Russo Law Group P.C. to discuss your situation.

Eric J. Einhart

Eric J. Einhart
Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530
800-680-1717

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