When to Expand Powers of Guardian
At times, a Court-appointed Article 81 Guardian may need to expand their authority to effectively support the person they are helping. In New York, a guardian starts with only the specific powers listed in the original “Order & Judgment Appointing Guardian.”
According to Mental Hygiene Law Section 81.20(a)(1), a guardian must only exercise powers authorized by the Court. Often, these are limited to the needs identified in the initial petition. However, as life circumstances change, those original powers may no longer be enough to protect the individual’s interests.
Why Would You Need to Expand the Powers of the Guardian?
Life is unpredictable, and a guardian’s role must often evolve. Common reasons for requesting additional authority include:
Changing Health Conditions: In cases where someone was originally a Person in Need of a Guardian (PING), their condition may decline. The guardian may then seek to expand their powers to provide the necessary level of assistance.
Unforeseen Legal Issues: A landlord might sue the person under guardianship. If the original order didn’t grant the power to defend or initiate lawsuits, the guardian must return to court for permission. Alternatively, the IP’s home may no longer be suitable and the IP may now require placement and to be moved.
Access Requirements: Someone may have originally objected to the guardian having keys to the person’s home. If a medical emergency occurs, that access becomes vital.
What Powers Would you Request?
There are many circumstances that require a guardian to seek “more teeth” for their legal authority. Below are the most common requests:
Expanding Role Of Temporary Guardian
There are many circumstances which may come up necessitating the need for additional powers. Once such instance is when the original Order to Show Cause appoints only a Temporary Guardian with limited powers. These powers usually include only those powers necessary to take care of imminent matters pending the hearing. When the Temporary Guardian starts to act, or when the duration of the Temporary Guardianship is extended, the Temporary Guardian may determine he/she will need to assist with something for which he/she does not have authority (marshall assets, have key access, have access to confidential records).
Also, the Guardian may determine that there are additional circumstances warranting more expansive powers. For example, the Temporary Guardian may go through the person’s mail or personal belongings and uncover a pending litigation, foreclosure action or eviction proceeding needing immediate attention.
Permanent Nursing Home Placement
If a person’s health declines and they can no longer remain safely at home, the guardian may need to facilitate a move to a long-term care facility. Even if a guardian has general personal powers, they often cannot permanently place an individual into a nursing home without specific court authorization. The Court must be satisfied that the placement is the “least restrictive alternative” available to ensure the person’s safety and care.
Medicaid & Long-Term Care Planning
If an individual requires home care or nursing home admission, the guardian may need to preserve assets. This often requires court approval to:
- Engage in Medicaid planning.
- Establish a Pooled Income Trust or Supplemental Needs Trust (SNT).
- Transfer assets to family members to meet eligibility requirements.
Additionally, there may come a time when the IP is receiving Medicaid benefits and inherits money. In such an instance, in order to protect the inheritance, it may be necessary to transfer assets and/or establish a Supplemental Needs Trust (“SNT”) into which assets can be transferred. If not originally contemplated, the Guardian will need to seek authority to engage in such Medicaid planning. Additionally, such Medicaid or special needs planning may include the need to establish an SNT for the benefit of the IP’s family members. All of this requires the Court approval and expansion of powers.
Real Estate & Property Sales
Also, if the Incapacitated Person owns a cooperative apartment (co-op) or house, and enters a nursing home, the Guardian may want to sell the co-op or apartment. To do so, the Guardian will need to request authority from the Court for the property to be sold. Another example would be if the IP’s family is living in a different state and feel it would be in the IP’s best interest to move him/her to another state to be closer to family, the Guardian could not do so without an Order from the Court authorizing such move and granting that power.
Expanding from “Property Only” to “Guardian of the Person”
In some instances, the Court may have originally appointed a Guardian of the Property only, believing the individual could still make their own personal and medical decisions. However, as a condition like dementia progresses, the individual may lose the capacity to manage their own healthcare or daily needs.
In these cases, you may need to petition the Court to expand the guardianship to include Powers of the Person. This expansion allows the guardian to:
- Make life-sustaining medical decisions.
- Choose doctors and healthcare providers.
- Determine who provides home care or where the person resides.
- Access confidential medical records (HIPAA).
How do you Expand the Powers of the Guardian?
The procedure to expand the powers of the guardian varies by county as well as by Judge.
Sometimes, the Court will accept a Short Form Order submitted with an Affidavit in support of the request to the Court Examiner on the case. If so, this is an ex parte Order, an Order which does not need to be served on interested parties. An example of such an instance may be if the Guardian needs the authority to retain or pay a professional such as an accountant or geriatric care manager.
Other times, such as when seeking to engage in Medicaid planning, permanent placement or the sale of the IP’s home, a more formal request will need to be made. This is usually done by either Notice of Motion or Order to Show Case with either an Affidavit or Petition attached requesting that the powers be expanded and an explanation for why it is in the best interests of the IP. In these instances, interested parties will need to receive notice of the proceeding and a hearing or return date of the motion will be held in front of the Court.
You should contact the guardianship department in the county where you intend to file your request to understand the procedure.
What do You do After you Expand The Powers of the Guardian?
Once the additional expanded powers have been granted, there will need to be an Order issued detailing the additional powers. The Guardian will need to serve this on all parties with a Notice of Entry. After the Order is signed, the Guardian can then take the steps necessary to comply with the powers granted.
FAQ Expand Powers of Guardian
The timeline depends on the complexity of the request and the county’s court calendar. An “Ex Parte” request (without a hearing) can often be signed in a few weeks. However, a formal motion involving Medicaid planning or a home sale may take several months, as it requires notifying all interested parties and attending a court hearing.
In New York, a guardian usually cannot move an individual into a permanent long-term care facility unless that specific power was granted in the original Order. If it wasn’t, the guardian must petition the court to show that a nursing home is the “least restrictive alternative” for the person’s safety.
A Guardian of the Property manages financial affairs, such as paying bills, managing investments, and protecting assets. A Guardian of the Person handles personal and medical decisions, such as choosing doctors, consenting to surgery, and deciding where the person lives. You can petition the court to expand a “Property Only” guardianship to include “Person” powers if the individual’s health declines.
While not strictly required by law, expanding powers involves filing formal legal documents (Motions or Orders to Show Cause) and navigating the Mental Hygiene Law. Because these changes impact the individual’s civil liberties and financial future, it is highly recommended to work with an experienced guardianship attorney.
Not necessarily. The judge’s primary concern is the best interest of the incapacitated person. The Court will review the evidence provided in your affidavit to ensure the expanded power is necessary and provides the “least restrictive” form of intervention possible.
Guardianships in New York are strictly tailored to the specific circumstances. If you or someone you love is unsure whether a guardian has a particular power or authority, consult an experienced guardianship attorney.
For more information, please contact NYC Probate Litigation, Guardianship, 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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