When to Start a NYC Guardianship Proceeding
Often times we find ourselves wondering whether the time is right to start a NYC guardianship proceeding. The below sets forth a few instances that should raise red flags and should get you thinking about filing.
No “Advance Directives” In Place
Generally, the most obvious reason to file is because the alleged incapacitated person is unable to make personal (health/medical) and financial decisions for themselves. More significantly, that person never signed the appropriate paperwork, such as a Durable General Power of Attorney and a Health Care Proxy to allow another to make decisions on their behalf. If an alleged incapacitated person is at home and unable to direct care, then somebody needs to direct care for them. Having guardianship over a person unable to direct care will allow the guardian to make the necessary personal and financial decisions.
A Person is Flip-Flopping Between Agents and Signing Multiple Powers of Attorney.
Similarly, it is a good time to start thinking and exploring guardianship if an alleged incapacitated person is signing multiple Powers of Attorney within the span of a few months. For example, if mom goes with her daughter to sign a Power of Attorney in favor of her daughter in August and then in September goes to sign a new document with her son and then in October goes to sign a new document with the daughter, then something is wrong. Rather than having a “battle” of the Powers of Attorney forms, one of the children should just consider the guardianship proceeding.
A person has been, or, is being exploited.
A great example of this is when an elderly individual is living alone and suddenly befriends a neighbor or suddenly becomes very close with an extremely distant relative who has never been in that person’s life in the past. The elderly individuals likes the attention, or, like the help, and starts giving more and more to the neighbor. The neighbor starts praying on the elderly and all of a sudden has become the named beneficiary in their documents and even the agent to make medical/financial decisions on their behalf. Consider contacting adult protective services immediately if you notice this type of behavior.
A Person Cannot Independently Perform their Activities of Daily Living.
If a person becomes entirely dependent on their home health aide, and has no documents in place, then it is a good time to start considering guardianship. Technically, when a person is home, in the absence of signed documents, nobody can make decisions on their behalf. I recognize that doctors and medical facilities/professionals will often allow the child of spouse to speak on behalf of the alleged incapacitated person. However, if there are multiple children and diverging opinions and plans of care then, you should consider guardianship.
A person is unable to manage their finances.
We have all seen it. You go to your parents’/grandparents’/friends’/neighbors’ house and they are struggling to write out a check or read a bill. They ask you to write the check and they scratch their signature across. Or, worse, they ask that you write yourself a check and sign it. You ask them where they bank and they stare at at you with a blank face. A person that does not know where they bank probably also does not have the wherewithal to sign advance directives. Please consider filing for guardianship to help that person.
A person is in a health care facility and unable to make the appropriate decisions to be discharged.
These are just a few examples. We can assist you in determining whether guardianship is right for your situation. Please feel free to contact us.
For more information, please contact Guardianship, probate and estate planning attorney Regina Kiperman:
Or visit her at her new location:
80 Maiden Lane
New York, NY 10038
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