Guardianship

Qualifying as a Guardian

 

The following information is intended to provide a general guideline for obtaining guardianship and the legal expectations of a guardian. It is not legal advice and assumes that a hearing has already been held and that the judge has issued a decision declaring the Alleged Incapacitated Person to be incapacitated and designated you as the Guardian. You might be the Guardian of the Person, meaning you have the legal authority to make personal decisions on behalf of the Incapacitated Person, and/or you may be the Guardian of the Property, meaning that you have the legal authority to manage the finances of the Incapacitated Person.

 

Following the hearing, your attorney will prepare an Order and Judgment that appoints you as the Guardian, and will submit this Order to the Court as well as will also send a copy to all persons who appeared at the hearing. The Judge then will sign the Order after it has been reviewed by all parties. In many counties, before the Judge signs the Order, the transcript of the hearing is required to be secured, and all parties must have at least 10 days’ notice. In those counties it may take a month or so after the hearing to receive a signed Order.

 

Your attorney will send you a copy of this Order. This Order stipulates your powers. It does not authorize you to act as Guardian. To act as a Guardian, you are required to receive a Commission to Guardian. The Commission will be issued when you have signed a Consent and a Designation and filed it with the County Clerk and, for most Guardians of the Property, when you have filed a Bond with the Clerk as well.

 

Consent and Designation

A “Consent to Act” states that you agree to act as the Guardian of the Incapacitated Person. Even though you have probably already declared in court your desire to act, you are required to sign this statement in front of a Notary Public, confirming your intent to act.

 

A “Designation” states that you will faithfully discharge your duties as Guardian. Additionally, if any issues arise pertaining to your duties that involve you being served legal papers and you cannot be found, then you agree that the County Clerk may be served these papers instead of you. In essence, this means that if you are no longer in the jurisdiction of New York, for the purposes of any action concerning your role as Guardian, legal action can continue as if you were in New York.

 

Bond

When you have been appointed as a Guardian of the Property, the Order and Judgment appointing you has set an amount of a Surety Bond to be issued to insure the Incapacitated Person’s funds from misuse. Before issuing the bond, the surety company might want you to complete an application form that lists your assets and liabilities so that the company can determine whether to issue this bond.

 

Once the bond has been issued, you are required to sign it before a Notary Public and then submit this bond either for approval by the Judge who appointed you, or directly for filing with the County Clerk of the county in which the proceeding took place. If you do not qualify for a bond, the Court might develop an alternative such as appointment of an attorney as co-Guardian. The premiums are paid for from the assets of the Incapacitated Person.

 

Commission

The Commission is issued by the County Clerk and states that you are qualified to serve as Guardian based on having filed your Consent and Designation and Bond. This Commission will, in many cases, list your duties and powers as delineated in the Order and Judgment appointing you as Guardian. The Commission is signed by the County Clerk and authorizes you to gather all the assets of the Incapacitated Person. If you are a Guardian of the Property, by presenting this Commission, all persons having assets of the Incapacitated

Person must deliver these assets to you.

 

When you are Guardian of the Person, by showing this Commission, you can make decisions concerning the personal needs of the Incapacitated Person within the parameters of the powers granted in the Order and Judgment. Since the Incapacitated Person might have assets in different financial institutions, you might want to obtain several Commissions certified by the County Clerk to be true copies of the original. In some counties, the Commission is a one-page document that is annexed to the Order and Judgment which delineates your duties and authority as Guardian.

 

The First Ninety Days

 

Training Course

All persons appointed Guardians are required to attend a training course for Guardians approved by the Office of Court Administration except for cases when this course has been waived pursuant to the Order and Judgment appointing you. These courses are offered on a rotating basis by the local bar associations as well as by other organizations, including law schools and providers of legal seminars approved to offer such courses. You are legally required to attend this training course within 90 days of the date of your Commission.

 

Upon completion, you will receive a Certificate of Attendance stating that you have attended this Guardianship class. This Certificate is an important document and should be retained with the other documents related to this Guardianship, such as the Order and Judgment and a certified copy of the Commission. In some counties, a compliance conference is held a few months after the Guardianship hearing to ensure that the training course has been completed and the Oath, Consent and Designation, and Bond have been filed. In some cases, the conference is waived if all of this material is submitted prior to the conference date.

 

Marshaling of Assets

 

As the Guardian, you are required to gather all the assets of the Incapacitated Person and establish accounts titled:

 

“YOUR NAME as Guardian of _____ an Incapacitated Person.”

 

Since you are not the owner of these accounts, the Social Security number of the Incapacitated Person will be used to establish these accounts. Before your appointment, the Petition seeking the appointment of a Guardian will have listed the assets of the Incapacitated Person. The Court Evaluator will have investigated to determine that the assets listed in the Petition are all the assets that belong to the Incapacitated Person. You are required to keep the Incapacitated Person’s funds separate from yours and never commingle (place your own assets into the Incapacitated person’s account, or place the Incapacitated Person’s assets into your own personal accounts).

 

Supplemental Needs Trust Assets

The Order and Judgment might have authorized you, as Guardian, to establish a trust fund for the benefit of the Incapacitated Person so that s/he can continue to receive government benefits such as Supplemental Security Income (SSI) and Medicaid, without having his/her own assets disqualify him/her from eligibility. In this case, if you are the Trustee of this trust, then you should gather all of the assets of the Incapacitated Person and establish accounts titled:

 

“YOUR NAME as Trustee of the Supplemental Needs Trust for _______, an Incapacitated Person.”

 

This trust will have its own Tax Identification Number (TIN) issued by the Internal Revenue Service (IRS). Use this number, rather than the Incapacitated Person’s own Social Security Number, in opening these accounts. This is the number that will be used in filing income tax returns for the trust. If your attorney has not already obtained this number for you, then you may request a form, called an SS4, from the IRS. The IRS will then issue the identification number to you.

 

When there is a structured settlement, or future periodic payments, the Commission and the Order and Judgment should direct the insurance company to make the future payments to you as the Trustee of the Supplemental Needs Trust Fund. Either you or your attorney must present that Order and the Commission to the insurance company that owns the annuity to arrange for proper payments. This information may be contained in a Court Order authorizing a lawsuit recovery for the Incapacitated Person.

 

Types of Accounts

 

Checking Account

It is important that you open a checking account in your name as Guardian of _________ an Incapacitated Person, so that you can make the expenditures authorized in the Order and Judgment and/or which are reasonable and necessary to provide for his/her needs. Retaining financial records is critical because, in their absence, filing an annual report will be difficult, if not impossible. By paying all expenditures by check, you will have proper and accurate records for the reports.

 

Securities, Annuities, Insurance Policies:

Securities will be titled in “Your Name as Guardian of ________, an Incapacitated Person”. If stocks and bonds are held by a brokerage company, investment house, or other financial institution, then the brokerage statement will be issued monthly or quarterly. You are required to verify that the account statements are correct, and have to retain these monthly or quarterly statements in preparation for your initial and annual reports.

 

Certificates of Deposit/Savings Accounts:

If you wish to keep these accounts, you must change the title of these accounts to “Your Name as Guardian of _______, an Incapacitated Person”. Even if the Certificate of Deposit (CD) has not come due yet, you still are required to change the title. When done pursuant to a court order, New York Banking Law §§9-I(2) and 238 preclude a bank from charging a penalty to this transaction.

 

Assessing Past Transactions that Occurred Before Your Appointment

When marshaling the above assets, you are required verify that any recent use of the funds was authorized. If you believe that the Incapacitated Person unknowingly transferred assets or that anyone made an unauthorized use of his/her funds while acting on behalf of the Incapacitated Person, you can demand their return. The Order and Judgment appointing you Guardian might have highlighted some unauthorized transactions and consequently might give you a clear mandate to gather specific assets no longer belonging to the Incapacitated Person or to have the assets located and returned.

 

Personal Property

Personal property must be inventoried. If this property is unattended you should secure it. All valuables will need to be appraised.

 

Joint Accounts

When assets have been jointly held between the Incapacitated Person and another person, the Order and Judgment will likely determine the percentage owned by the Incapacitated Person and the percentage belonging to the other individual(s). For instance, assets might have another person’s name for convenience only, and they truly belong to the Incapacitated Person. The assets belonging to the Incapacitated Person, you will marshal in accounts titled: “Your Name as Guardian of _________, an Incapacitated Person”.

 

The Last Will and Testament

In the event that the Incapacitated Person has executed a Last Will and Testament, you are required to locate the original Will. In some counties, the Will is required to be filed with the Surrogate’s Court in the county in which the Incapacitated Person resides. In other counties, the original Will is kept with the attorney who drafted the Will. When you file the Will with the Surrogate’s Court, you will receive a receipt for this filing, which should be retained along with the other related documents.

 

Real Property

 

Real Property Filing

If the Incapacitated Person owns an interest in real property, then you are required to file a form called a “Notice of Pendency” with the County Clerk in the county in which the property is located. This Notice identifies that an Incapacitated Person owns an interest in this property. The real property will be protected and cannot be conveyed without the approval of the Court. This form is filed with the section, lot, and block of the property and is signed by you before a Notary Public.

 

Appraisal

Securing a written appraisal of real property owned by the Incapacitated Person supports you in evaluating whether retaining this real property is in the best interest of the Incapacitated Person.

 

Insurance

You are required to determine that all insurance premiums have been paid. If there has been a lapse in fire and theft coverage, this must be reinstated or new insurance purchased.

 

Inventory Safe Deposit Box

 

A safe deposit box is required to be opened in the presence of a bank officer and a representative of the surety, except when waived in writing. The contents are required to be inventoried and this inventory list should be filed with the Court. The contents of the safe deposit box should be secured and included in your Initial Report.

 

Assessing Needs

The Order and Judgment stipulates a plan that you will undertake in the best interest of the Incapacitated Person. If the Guardian for Personal Needs is different from the Guardian for Property Management, the two Guardians are required to coordinate efforts to execute the proposed plan for the Incapacitated Person. The Guardian for Personal Needs is required to determine if there are any unmet medical, personal care, or housing needs. If the Incapacitated Person has been living alone, then you might need to arrange home care services for him/her. You are required to assure that sufficient care is provided for the needs of the Incapacitated Person. You might also have the authority to choose the place of residence. Assisted living facilities or entry to a skilled nursing facility as alternatives to living alone might be sought after if deemed appropriate and if authorized in the Order and Judgment. Often, prior approval by the court is required before the Incapacitated Person can be placed in a long-term health care facility.

 

Court Examiner

The court will appoint a Court Examiner who will assess your initial and annual reports. This person is different from the Court Evaluator who was present at the hearing that determined that the Incapacitated Person needed a Guardian and that you would be suitable to serve. The name, telephone number, and address of the Court Examiner will be included in the Order and Judgment. You should forward to the Court Examiner a copy of your Order and Judgment appointing Guardian, Consent and Designation, Bond, Commission, and Supplemental Needs Trust (if applicable).

 

Initial Report

An initial report is due 90 days after the issuance to you of your commission as Guardian. You should send the original initial report to the Court, and a copy to the Court Examiner. You must include the following:

 

1. A copy of the Certificate of Attendance stating that you have attended a Guardianship class as part of this initial report. If you have been unable to attend such a class, you must explain why and what plans you have made to enroll in the class.

2. A list of all the assets of the Incapacitated Person and proof that they are now titled in “Your Name, as Guardian of _______ an Incapacitated Person”.

3. An explanation as to why any assets have not yet been titled in your name as Guardian (if applicable).

4. A copy of the Real Property filing with the County Clerk for any real property owned by the Incapacitated Person.

5. A medical report on his/her mental and physical condition, together with a statement of medications and treatments.

6. Expenditures you have made on behalf of the Incapacitated Person. These are called disbursements.

7. A receipt showing that you have filed the Last Will and Testament with the Surrogate’s Court (if applicable).  

 

Investment of Assets

Pursuant to the Prudent Investor Standard, the Guardian should invest and reinvest the funds according to Estates Powers & Trusts Law 11-2.3. Additionally, for accounts retained in banks, you must be careful not to retain more than $250,000 in any single bank, as the accounts may not otherwise be insured by FDIC.

 

Powers of The Guardian for Property Management and Personal Needs

 

Introduction

Article 81 of the Mental Hygiene Law provids incapacitated persons the opportunity for their previous wishes to be honored and, in the absence of a prior expression of their desires, the wishes of a reasonable person in their circumstance are applied to the incapacitated person’s situation. Since the law leaves as much discretion and autonomy with the Incapacitated Person as possible, you only have the powers specifically authorized by the court. Whe providing for the property management and personal needs of an Incapacitated Person, you are required to exercise your judgment within the parameters of the court order to provide for the best interests of the Incapacitated Person.

 

Marshaling Assets and Establishing an Accurate Inventory

The Order and Judgment might have already approved expenditures to be made from the funds of the Incapacitated Person. All expenditures are required to be either directly or indirectly for the benefit of the Incapacitated Person. In many counties, any large expenditures not previously authorized should receive prior approval of either the Court or the Court Examiner.

 

The individual courts differ on what defines a large expenditure that establishes the need for specific approval. In some counties, individual expenditures over $5,000 should have specific approval if not included in a budget or in the type of expenditures for which you are given discretion to make as Guardian. In Queens County, for instance, a Guardian can present a short form Order to the Court Examiner assigned to the case in which the Guardian will detail the expenditures in question. The Court Examiner will then review the proposed expenditure and make a recommendation to the Court. The Court will either approve or disapprove the expenditures or call for additional information related to the need for the expenditures. In some counties a letter written to the Court Examiner will do, while other counties do not require court oversight and prior approval for large expenditures. If you were represented by an attorney in the Guardianship proceeding, then your counsel can advise you on your ongoing reporting obligations.

 

Since the Court’s primary concern is preserving the assets of an Incapacitated Person for his/her own needs, you should review previous patterns of spending made by the Incapacitated Person when the Incapacitated Person was relying on his/her own judgment. In preparing a budget, you should assess the needs of the Incapacitated Person, the assets available to provide for the needs, and the desires expressed by the Incapacitated Person.

 

Any previous pattern of gifting can also be continued, subject to the Court’s prior approval. In assessing whether to gift assets, the tax and government entitlement consequences of the proposed gifting must be analyzed and presented to the Court for the Court’s consideration. Without Court approval, you cannot use the assets of the Incapacitated Person for anyone other than the Incapacitated Person. With the Court’s approval, the Guardian can provide for the support of those dependent upon the Incapacitated Person, even if the Incapacitated Person is not legally liable for the support of those dependents.

 

Determining Eligibility for Government and Private Benefits

As a Guardian, you are a Fiduciary. As a fiduciary, you have a duty to act in the best interest of the Incapacitated Person and are not allowed to personally benefit from the decisions that you make for his/her benefit. Consistent with your fiduciary duty to preserve assets of the Incapacitated Person as well as with your authority to qualify the Incapacitated Person for government and private benefits, you can examine the situation of the Incapacitated Person to determine whether s/he is entitled to receive either private benefits or government benefits.

 

The following information is a brief overview of the government entitlements and private benefits that an Incapacitated Person might be eligible and the requirements for those entitlements.

 

Private Benefits

 

Pensions

An Incapacitated Person might have a work history that entitles him/her to pension benefits that s/he may have never applied to receive. You should contact the employer and determine whether the Incapacitated Person is entitled to monthly or lump sum benefits. Additionally, if no beneficiary has been designated, or if the beneficiary designated is deceased, you can make an application to the Court for the authority to name a beneficiary either consistent with the Incapacitated Person’s current wishes or with his/her past wishes.

 

Insurance

Insurance is generally an employment-related benefit. You must examine life insurance plans and arrange to pay any premiums required, if retaining the insurance is in the best interest of the Incapacitated Person. You also might have been given the authority to change beneficiaries of the insurance policies in the Order and Judgment Appointing Guardian.

 

Annuities

Annuities might be in the distribution phase or consist of a lump sum accruing interest that will make distributions in the future. The Incapacitated Person might be the owner of the annuity, meaning that s/he can activate distributions or designate beneficiaries, and/or the annuitant, meaning that payments will be made during his/ her lifetime. You may determine whether an annuity should be annuitized, in doing so giving an income stream to the Incapacitated Person. Proper precaution needs to be taken that such determinations do not jeopardize the Incapacitated Person's current or future eligibility for Medicaid.

 

Disability Benefits

If the Incapacitated Person is a disabled person s/he might have worked and be eligible for private disability insurance payments. You must explore the details of this benefit and determine whether any denial of private insurance benefits should be appealed.

 

Government Entitlements: Social Security Retirement, SSI, Social Security

Disability, Disabled Adult Child Benefits, Medicare, Medicaid

The Social Security Act has different programs which provide cash payments to recipients and programs that provide health care coverage. The following information is a brief summary of the programs for which an Incapacitated Person may be eligible:

 

Social Security Retirement Benefits

For workers age 62 and older who have paid into the Social Security System and are now retired, Social Security will provide monthly payments.

 

Social Security Disability

Workers who have worked and paid into the Social Security system and are now unable to engage in substantial gainful activity because of a total disability are eligible to receive Social Security Disability payments.

 

 

Disabled Adult Child Benefits

Children disabled prior to age 22 whose parents are retired, deceased or disabled can also receive Disabled Adult Child benefits as a dependent based upon the parent’s earnings.

 

Supplemental Security Income (SSI)

For the aged (over 65), blind or disabled (unable to engage in competitive employment) who have not worked the required number of quarters (40) in the past years or who have never worked and/or paid into the Social Security system, SSI will pay a maximum of $733/month in New York State (for 2016) to persons residing in their own households (The State supplement is $87 per month). For those in care facilities such as adult homes and community residences, SSI will pay more from $999.48/ month to $1,427.00/month, depending on the level of services (for 2016). These figures change annually with a cost of living adjustment.

 

Medicare

For those who have paid into the Social Security System and are 65 years of age, the Medicare program provides coverage for hospitals and nursing home care under Part A. For hospital stays, the first 60 days are covered after an initial deductible and days 60-150 require a co-insurance payment. For nursing home stays, the coverage is 100% for days 1-20, so long as the patient is receiving skilled care and is entering the facility within 30 days of a 3-day minimum hospital stay. Afterwards, if additional skilled care is still required, then Medicare will pay for up to an additional 80 days, minus the deductible.

 

Under Part B, physicians’ charges are covered with a co-pay. Medicare Supplemental Policies, A-J, will supplement these benefits. Under Part D, Medicare will cover prescription drugs with a co-payment. Numerous prescription drug plans cover different medications. As Guardian, you should determine whether the Incapacitated Person is enrolled in a Prescription Drug Plan, and, if so, whether the Plan chosen by the Incapacitated Person is the best Plan for him/her.

 

Medicaid

Medicaid is a health benefits program under the Social Security Act that provides a wide range of health care coverage, both custodial and skilled, both at home and in a nursing facility, provided that the applicant/recipient has no more than $14,850 in available resources (in 2016). This figure changes annually. Some resources, such as a car, a house in which the Medicaid recipient resides depending upon its value, and a prepaid funeral are not countable resources when computing Medicaid eligibility.


 

Supplemental Needs Trust Funds

You may be serving as both a Guardian for Property Management as well as a Trustee of a Supplemental Needs Trust for the benefit of a disabled individual under the age of 65. The trust document will detail special rules concerning disbursements from the trust.

 

You are required to give notice to the local Department of Social Services prior to making certain disbursements from the Supplemental Needs Trust. Your attorney will explain the special rules that apply when you are the Trustee as well as the Guardian. These trusts are also sometimes referred to as Special Needs Trusts.

 

Ensuring Receipt of Court Approval for Any Unusual Expenditures

In many counties, any items not approved in a budget that are not clearly for the Incapacitated Person require prior court approval.

 

Entering Into Contracts

Contracts might be required to provide for the needs of the Incapacitated Person. Prior to executing any contracts to buy or sell real property, however, it is required to consult with your attorney.

 

Authorizing Access to or Release of Confidential Records

You will determine who receives and assesses medical and other kinds of confidential records of the Incapacitated Person.

 

Conditioning All Contracts for Sale and Purchase of Real Property Upon Court Approval

The procedure for selling and purchasing real property differs from county to county. Consult your attorney regarding the process in the county where the Guardianship exists. For those counties following Article 17 of the Real Property Actions and Proceedings Law (RPAPL § 17), you can bring a proceeding by filing a Petition stating why you believe purchasing or selling real property is in the best interest of the Incapacitated Person. Your attorney will assist you in bringing a Petition seeking the Court’s approval for your anticipated sale or purchase. The contract for sale or purchase must be conditioned on Court approval to avoid risking the Incapacitated Person’s funds. Your attorney will also advise on whether you can use the Incapacitated Person’s funds as a down payment prior to Court approval.

 

Exercising the Right to Elect Options and the Right to Change Beneficiaries Under Insurance and Annuity Policies and to Surrender the Policies for Their Cash Value

Following either the Incapacitated Person’s own wishes or determining what a reasonable person would do in similar situation, you can manage the insurance assets of the Incapacitated Person, as consistent with the Order and Judgment appointing you Guardian.

 

Requesting Court Approval for Retaining Attorneys and Accountants

While the Order and Judgment might authorize you to represent the Incapacitated Person’s interests in any state of the United States and New York State, and while the Order and Judgment might authorize you to retain an attorney or accountant, in downstate counties, no fees from the Incapacitated Person can be paid to the attorney or accountant without prior Order of the Court. These fees can be authorized in the annual accounting, or the attorney can make an application to the Court for the approval of attorney’s fees. In some counties, the Order and Judgment will have approved reasonable fees for accountant services for the filing of annual tax returns and/or the preparation of your annual accounts. If so, then no additional court order may be required providing the fees do not exceed the limit set by the Order.

 

Devising a Plan and Supervising Medical, Dental, Mental Health, or Related Services for the Incapacitated Person

Decision making is a fundamental part of the role of Guardian. The Petition for the Appointment of a Guardian might have pursued the Court’s approval of a plan for you to provide for the Incapacitated Person’s needs. This plan is required to provide the least restrictive environment for the Incapacitated Person, respecting any wishes that the Incapacitated Person may communicate and leaving him/her with the greatest level of autonomy as possible. When the Incapacitated Person will remain in the community, care is required to be given for his/her safety and the provision of his/her needs. Specifically, you now have the authority and the duty to safeguard the Incapacitated Person by coordinating necessary medical and dental appointments as well as arranging for the Incapacitated Person to attend these appointments.

 

Having the Authority to Make Residential Placement

The Guardian is not allowed to consent to the voluntary formal or informal admission of the Incapacitated Person to a mental hygiene facility such as a psychiatric hospital or to an alcoholism facility. These admissions are procedurally directed in other parts of the Mental Hygiene Law.

 

However, a Guardian can pursue the Court’s permission to coordinate the admission of the Incapacitated Person to a skilled nursing facility or to an adult home. If this admission was contemplated at the time of the Petition to Appoint Guardian, the Court might have already consented to the plan and may have authorized you to select a more restrictive environment for the Incapacitated Person than the one in which the Incapacitated Person was residing prior to your appointment.

 

In pursuing the admission of an Incapacitated Person to a nursing facility, you should be guided by the existence and availability of family, friends, and community services; the care, comfort, and maintenance and rehabilitation of the Incapacitated Person; as well as the needs of those with whom the Incapacitated Person resides. As long as it is reasonable under the circumstances to keep the Incapacitated Person in the community, residential placement cannot occur without the consent of the Incapacitated Person and/or of the Court.

 

When evaluating the placement of an Incapacitated Person in a residential facility, you are required to be aware of the cost and methods of payment available for these facilities. When the Incapacitated Person has extensive resources the payment source is not an issue. However, in some adult home and congregate care living arrangements, the SSI program covers the room and board, as long as the Incapacitated Person’s income is less than the applicable SSI rate for that type of home. For example, the Medicaid program does not cover room and board at an adult home, but it might cover the care at certain other assisted living facilities, while others are paid for only privately. Proper precaution should be taken to ensure that there will be sufficient assets to pay for the stay at these facilities that take only private pay.

 

In a skilled nursing facility, the Medicaid program will pay for room and board and medical treatment. While the private rate might exceed approximately $10,000 per month, the Medicaid program will fully pay for the services, except at a much lower rate. Medicaid will make payment only when the applicant has no more than $14,850 in available assets (in 2016), and if any waiting period caused by the transfer of assets has passed. Your attorney can provide assistance to you in determining when it is proper for you to apply for the Medicaid program on behalf of your ward.

 

Having Authority to Make Medical Decisions

Guardians are typically given the authority to consent to or refuse generally accepted routine or major medical or dental treatment. If you have this authority, then you are required to make treatment decisions in compliance with the patient’s wishes, including his/her religious and moral beliefs, or, if these wishes are not known and cannot be determined with reasonable diligence, according to the Incapacitated Person’s best interests.

 

The best interests standard would include a consideration of the dignity and uniqueness of the Incapacitated Person; the possibility and extent of preserving the Incapacitated Person’s life; the preservation, improvement or restoration of the Incapacitated Person’s health or ability to function; the alleviation of the Incapacitated Person’s suffering; the adverse side effects related to the treatment; the consideration of any less intrusive alternative treatments; and other concerns and values that a reasonable person in the Incapacitated Person’s situation want wish to consider.

 

The Court might have revoked advance directives such as Do Not Resuscitate (DNR) Orders, Health Care Proxies, and Living Wills, if they conflict with the powers given to the Guardian and/or if the person who had been appointed was not fulfilling his duty to the Incapacitated Person.

 

Depending on how the Order and Judgment is drafted, you might have the inherent power to grant consent to withhold or withdraw life-sustaining treatment, including artificial nutrition and hydration. If this situation arises, you should consult your attorney.

 

Annual Reports

Retaining accurate financial records that reflect all income and expenditures is essential and required. Every year, in the month of May, you must account to the Court and to the Court Examiner regarding the assets and income received by you on behalf of the Incapacitated Person as well as the expenditures made. You will have to maintain accurate records and have bills and receipts to substantiate expenditures when the nature of the expenditure might not be clear. Each account should detail the starting balance upon marshaling, the monthly income earned from the account, and the annual income earned. When added up, the income and principal recorded should balance the total receipts at the end of the year.

 

For disbursements, you should categorize the type of expenditures. Typical categories include health care aides, prescriptions, room and board at a facility, physician bills, clothing, rent, taxes, and Guardianship expenses. The year's beginning balance, plus the income received, minus the disbursements, should be equal to the balance retained at the end of the year.

You will need to send the original report to the Court. A copy of the report will also be sent to the Incapacitated Person, to your surety bond company, as well as to the Court Examiner. Some Court Examiners will need copies of all bank statements, canceled checks, bills to substantiate written checks, income tax returns, and proof of income. Others will want this underlying documentation only on request. If the Incapacitated Person resides in a facility, a copy of this report will need to be sent to the facility's Chief Executive Officer. For skilled nursing facilities, the Court might want you to send a copy to the Mental Hygiene Legal Service of the judicial department in which the Incapacitated Person resides. If the Incapacitated Person is a Medicaid recipient, then the Court might also request that a copy of this accounting be sent to the Commissioner of the Department of Social Services of the county in which the Incapacitated Person resides.

 

You cannot take any compensation for your services as Guardian without the prior order of the Court setting the amount of this compensation. In some courts, your compensation will be based on a percentage of funds received and disbursed, and other courts will set compensation based on a percentage of the principal.

 

In other counties, the time spent is compensated. You should include form U.C.S. 875 for the recording of Court-Ordered compensation. In several counties, the Court Examiner will assess the report and submit recommendations to the assigned Justice for approval. The resulting Court Order will typically include the approval of the annual account, the establishment of compensation for the guardian, and approval of compensation of the Court Examiner. Accountant fees and/or counsel fees might also be established in this Order.

 

Uniform Adult Guardianship and Protective Procedd Jurisdiction Act

New York State has formally adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGAPPJA), which recognizes the mobile nature of modern society and the legal problems that can potentially arise when incapacitated adults move from one state to another. The UAGPPJA went into effect on Apri1 21, 2014 as Article 83 of the Mental Hygiene Law of the State of New York. The UAGPPJA creates a method for resolving multi-jurisdictional disputes by helping accomplish the following 3 objectives:

  • identifies one state court to adjudicate first-time guardianship petitions
  • establishes a system of transferring existing guardianship appointments from one state to another
  • establishes a system for acknowledging and enforcing guardianship orders of one state in another

 

When multistate guardianship issues arise you might need the assistance of counsel to navigate these issues.

 

Termination of Guardianship

The process to end the Guardianship, upon death of the Incapacitated Person, requires the filing a Statement of Death on all interested parties by certified mail with a return receipt requested within 20 days of the Incapacitated Person’s death. Within 150 days of the Incapacitated Person’s death, you are required to make a motion to Judicially Settle the Final Accounting. The Final Accounting and Statement of Assets and Notice of Claims is required to be part of this motion. You are additionally required to deliver the remaining assets to either the Court-appointed estate representative or the public administrator. You are allowed to retain some assets for outstanding administrative costs (i.e., statutory legal fees, commissions, etc.). The process is a slightly different if the Incapacitated Person’s assets are depleted during his or her lifetime. In some counties you can make a motion to settle your final account. In other counties you are required to make a request for permission to file a Final Accounting. The Court will typically issue an Order for Leave to File a Final Account, and Move for Its Settlement, generally giving you 60 days to file this accounting with the County Clerk’s Office and move for the account’s settlement. This Order will also tell you who must receive a copy of this Final Accounting. After the Court has approved your Final Accounting, your attorney will then submit an Order Settling the Final Account, which will set compensation owed to you and provide instructions on how to disburse the remaining assets in the Guardianship. After complying with these directives, your attorney will then submit an Order Discharging you as Guardian and also discharging the surety bond company. This last order will officially terminate the Guardianship.

 

Conclusion

While the opportunities for planning for an Incapacitated Person’s present and future needs are great, you should be careful to adhere to the powers the Court has granted. If additional powers become necessary as the Incapacitated Person’s circumstance changes, you are required to seek the Court’s approval for expanded intervention, which will often decrease the Incapacitated Person’s own decision-making authority.

 

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