No one likes to consider the fact that they may one day need help in managing their affairs, but the fact remains many people will need a fiduciary they can trust to act on their behalf when incapacitated. Typically as part of an estate plan, an individual will execute a power of attorney appointing one or more individuals of their choice to manage their health care decisions and financial matters in the event they can no longer handle their own affairs. Powers of attorney can vary in scope and purposes, and can serve as one method to avoid judicial intervention, including guardianship or conservatorship proceedings.
When a health care or financial power of attorney are not sufficient or absent from an estate plan, a guardianship or conservatorship proceeding may be necessary to appoint someone to represent the person suffering an incapacity. In New York, a proceeding for guardianship can be commenced by a variety of parties, including, a distributee of the incapacitated person’s estate, certain fiduciaries, an interested party concerned with the welfare of the individual, or the incapacitated person himself. Incapacity is determined by clear and convincing evidence that the individual is unable to manage their own affairs and is unable to understand the consequences surrounding their inability in such a way that will likely cause harm to themself or others.Courts will consider a variety of factors when selecting a guardian, including the incapacitated person’s specific needs and the capabilities of the proposed guardian in meeting those needs.
Can I Select My Guardian?
A frequent question that many people have is whether they can select their guardian or conservator to represent them if the become incapacity. Some states provide the ability for individuals to designate a guardian in advance of incapacity. At the very least, most states, including New York, allow the incapacitated person to nominate a guardian, in which case such preferences contained in the power of attorney document could be used as evidence in demonstrating the incapacitated person’s intention as to who should act on their behalf in case of incapacity.
Planning for Incapacity
Your estate planning and elder law attorney can help you consider the risks and benefits of granting a power of attorney against the burdens and benefits of guardianship and conservatorship proceedings. Based the solution that best fits your needs you may need to include essential documents with the appropriate language to support and effectuate your choice of how oversees your affairs in the event you become incapacitated.