LAW OFFICES OF HOWARD M. ADELSBERG

Guardianships, Powers of Attorney, and Health Care Proxies

Guardianship Proceedings
Pursuant to Article 81 of the Mental Hygiene Law of the State of New York, a guardian of both the Property and/or the Person can be given the power to manage and control the decedent's health care decisions, and property, including powers to among other things, make gifts, provide support for the Alleged Incapacitated Person (A.I.P.) and his or her dependents, renounce or disclaim property interests and release confidential records. The use of the word "incapacitated" to describe the person who needs a guardian dates back to 1993 when the guardianship law in New York was changed. Until then, before someone could be made responsible for an individual's personal needs, the court had to find that the individual was "incompetent," a term with a stigma that suggested the individual was totally incapable of managing any elements of his or her life.

In addition, a guardian of the person can be given power to decide whether the A.I.P. can have a driver's license, to make medical decisions for the A.I.P. and to choose the place of abode of the A.I.P., including the power to place the A.I.P. in a nursing home or residential care facility.

If court finds that the person has knowingly signed documents such as a power of attorney and a health care proxy, it may conclude that a guardianship is not needed a guardian can be appointed for someone when a judge concludes that the person is "incapacitated," the legal term describing an individual who needs help with at least some of the critical activities of everyday life.

The Mental Hygiene Law states that a petition seeking the appointment of a guardian may be made by anyone "concerned with the welfare" of an individual. Although this concerned person is often a family member, it may also be a friend or a hospital where a person is being treated.

After the petition is filed, a judge names a "Court Evaluator." This person serves as the "eyes and the ears" of the presiding judge to assess the person's A.I.P.'s needs. The Court Evaluator must visit the person, explain what is happening, interview relatives, friends and anyone else who understands the person's needs, and prepare a detailed report for the court. The Court Evaluator must investigate the claims of the Petition and then make a recommendation to the presiding Judge.

Depending on what the evidence shows about the likelihood of harm, the judge then appoints a "guardian for property management" to administer the person's finances, a "guardian for personal needs" to make decisions about the individual's personal life, or a "guardian of the person and property" responsible for both finances and personal matters. At times, the court may appoint two separate guardians, one for finances and one for personal needs.

Although the powers given by the court may be quite sweeping, the guardian must still allow the incapacitated person "the greatest amount of independence and self-determination" in light of the individual's "functional level," and "personal wishes, preferences and desires."

Even if authorized to decide where the incapacitated person lives, the guardian cannot have the person transferred to a nursing home unless the court order specifically approved such a transfer. If the guardian concludes that the person should be in a nursing home, the guardian must go back to court for a separate order authorizing admission to a nursing home.

Power of Attorney
The law in New York law makes provision for both a power of attorney that is immediately effective and for a power of attorney that takes effect only when someone such as a physician certifies that the individual is no longer able to manager her/his affairs.

The disadvantage of the latter type of power of attorney is the need to certify that a person is no longer able to act for himself/herself. This can impose delays at precisely the time when quick decisions are needed, and a physician may be reluctant to be placed in the position of making such a decision. For this reason, a "Durable General Power of Attorney," is generally preferred.

The law allows for a single agent to be named, but two or more persons may also have decision making authority. If two are given joint authority, the Power of Attorney provides for the person signing the power of attorney (known as the Principal) to specify that they (the Agents) either of the two make act without a signature from the other, or that both must sign any document being executed on the basis of the power of attorney.

Health Care Proxy
Although a person may have a valid Power of Attorney, the law requires more if health care decisions need to be made, or if medical authorizations need to be signed.

A Health care Proxy is needed when individuals are no longer able to make healthcare decisions for themselves. Healthcare providers turn to the agent - the person name din the healthcare proxy, only when a satisfactory response from the ill or impaired individual is impossible.

A healthcare proxy should be prepared well in advance of any illness, because the need for it can arise in an instant after a stroke or some type of accident. The health care provider may even contest the validity of the Healthcare Proxy.

By law, the agent named in a healthcare proxy is authorized to make a full range of medical decisions for the person affected - with two exceptions. The agent may not refuse to allow the person to be given artificial nutrition or artificial hydration.

If the person signing the healthcare proxy (the "Principal") wants the agent to have authority to address these two issues, additional language must be added in the Healthcare Proxy.

Unlike the rules for powers of attorney, the healthcare proxy law provides for only one agent to have authority at any one time. However, the law allows for an individual to be named as a backup, in the event the Agent is unavailable.