After a Guardian is appointed by the Court, that Guardian may need permission to place the incapacitated person in a nursing home. This can occur for a number of reasons (for example: the person is not safe at home, the person cannot be properly taken care of at home, or something has happened to the home rendering it unsuitable for the person.)
How can a Court Appointed Guardian Place the Incapacitated Person into a Nursing Home?
A Guardian may be permitted to place an Incapcitated Person (“IP”) into a nursing home should that become necessary and in the best interests of the IP. Indeed, typically the Order and Judgment appointing the Guardian will provide a provision directing the Guardian to
“make all efforts to maintain the Incapacitated Person in his home, and if, at any time, the Guardian wishes to relocate the Incapacitated Person, the Guardian may do so only with the express consent of the Court and only upon a Motion on notice to all interested parties”
This is because NY MHL §81.22(a)(9) mandates the imposition of the least restrictive alternative so as to afford the incapacitated person the greatest amount of independence and self-determination of which they are capable. Although a Court may empower a guardian to determine the ward’s place of abode, that power, is constrained by the admonishment that:
“the choice of abode must be consistent with the findings under section 81.15, the existence of and availability of family, friends and social services in the community, the care, comfort and maintenance, and where appropriate, rehabilitation of the incapacitated person, the needs of those with whom the incapacitated person resides; placement of the incapacitated person in a nursing home or residential care facility as those terms are defined in section two thousand eight hundred one of the public health law , or other similar facility shall not be authorized without the consent of the incapacitated person so long as it is reasonable under the circumstances to maintain the incapacitated person in the community, preferably in the home of the incapacitated person.”
How Do I Get Permission to Place the Incapacitated Person in a Nursing Home from the Court?
Before any placement can occur, the Guardian will need to make a motion to the Court requesting this relief. The Guardian can do so on his/her own or may retain an attorney to assist. The process will either be by Notice of Motion or Order to Show Cause (this is county specific) and a Petition to place the incapacitated person. The Guardian may want to call the Court to determine the correct procedure in the instant case.
The Guardian will need to explain to the Court some background and the reason the IP needs a more restrictive environment and to be permanently placed in a long term care facility and why such a move is in the incapacitated person’s best interest. If the Guardian is seeking permission after the placement has already happened, an explanation should be given as to why that was the case. If it is possible to obtain the consent of the incapacitated person, then the guardian should obtain such consent and advise the Court of such consent.
When filing papers with the Court the Guardian should be sure to look at the Order and Judgment appointing the Guardian to make sure the Guardian gives notice of the intent to place the incapacitated person into a nursing home to all necessary parties entitled to service of the papers.
The Court will likely appoint an attorney to meet with the incapacitated person and advocate whether such a move is in the best interests of the incapacitated person. The Court will also set a date for and hold a hearing and make findings on the record that such a move to a nursing home is necessary.
How Long Does it Take to Secure Approval?
The length of time will vary depending on whether there is any opposition to the motion to place. If there is no opposition, then this process will take approximately one month. If there is opposition, it can take several months.
What about Emergencies or Short Term/Temporary Stays?
Ideally a Guardian should always seek permission from the Court for placement in a nursing home prior to the admission. However, that is not always possible. For example, an IP may be admitted to the hospital and a condition of discharge from the hospital is that the IP be admitted to a nursing home either for short term rehabilitation or for long term placement. In such an instance, it may not be possible to obtain permission ahead of time. Further, the admission may be with the intention that it is short term or temporary but while the IP is in the nursing home, it is determined that he/she will need to stay permanently. Once that determination is made, the guardian should proceed to secure Court Approval on a retroactive basis.
Do I need Permission to Place in an Assisted Living Facility?
The Guardian will need to check his/her specific Order & Judgment for any provisions with respect to placement. Usually, the O&J will state that the Guardian may decide where the IP will live but that placement in a more restrictive environment is subject to prior court approval. That would include assisted living if the IP had been living at home.
We can help you secure permission to place an incapacitated person into a nursing home when there is necessity to do so. Contact us today for more information.
For more information, please contact NYC Probate Litigation, Guardianship, NYC Probate and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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