When to Expand Powers of Guardian
At times, a Court appointed Article 81 Guardian may need to expand the powers of the guardian in order to effectively perform their duties. An Article 81 Guardian, when appointed, starts off with only those powers enumerated in the Order & Judgment Appointing Guardian. Indeed, Mental Hygiene Law Section 81.20(a)(1) provides that “a guardian shall exercise only those powers that the guardian is authorized to exercise by Court order.” These powers will usually consist of the powers listed in the original Petition.
Why Would You Need to Expand the Powers of the Guardian?
There are times when the Petitioner may not have contemplated the need for certain powers and therefore did not list such powers in the original Petition. For example, after a Guardian is appointed, the landlord sues the incapacitated person. The Petitioner may not have envisioned a lawsuit and did not give the Guardian the power to initiate, maintain, and defend.
Other times, someone may have objected to certain powers at the time of the hearing but the need for those powers arises at a later date. For example, at the hearing, a party objected to the Guardian having key access to the incapacitated person’s home. Subsequently, it becomes necessary for key access.
Still other times, the powers initially given to the Guardian may be more limited. For example, in a case where someone is not deemed incapacitated, but only a Person in Need of a Guardian (“PING”), the Court may taylor the powers that the Guardian needs to only the bare minimum. However, there may come a time when the PING’s condition declines and he/she requires additional assistance. The Guardian may seek to expand his/her powers to adjust to the PING’s needs.
What Powers Would you Request?
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.
Alternatively, in a case where the Permanent Guardian is already acting, there may come a time when the Incapacitated Person (“IP”) requires home care services, in which case there will be larger monthly expenses than originally contemplated. In order to make these increased monthly expenditures, the Guardian may be required to seek authority from the Court.
Further, there may come a time when the Guardian wants to preserve the IP’s assets by engaging in Medicaid planning and a transfer of the IP’s assets. Such Medicaid planning may include the need to establish a pooled income trust so that the Guardian can transfer the IP’s income each month. The guardian would need to request authority to engage in Medicaid planning.
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.
Another way the need for Medicaid planning can come up would be if the IP was living at home and suddenly required admission to a long term care facility (nursing home) and the IP has assets above the Medicaid resource allowance. The Guardian may want to seek authority to engage in Medicaid planning to protect the IP’s assets upon admission to the nursing home. Not only would the admission to a nursing home cause the potential need for Medicaid planning, but once admitted and it is anticipated that the IP will need to be in the nursing home long term, it will be necessary for the Guardian to obtain the authority to permanently place the IP into the nursing home.
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.
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.
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 Estate Litigation, Guardianship, Probate and Estate Planning attorney Regina Kiperman:
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