Burner Prudenti: Is A Guardianship Appropriate?

Is A Guardianship Appropriate?

Q: My dad is in his eighties, has worsening dementia, and never executed a Power of Attorney or Health Care Proxy. How can I help manage his affairs? I am worried I may need to bring a guardianship.

A: A diagnosis of dementia does not necessarily mean he cannot execute a Power of Attorney (POA) or Health Care Proxy (HCP). There is a wide spectrum of cognitive ability; it is often not a yes-or-no proposition. The best-case scenario is to sign a POA and HCP well before you need someone to act. It is very possible that upon initial diagnosis, someone still has the ability to make these decisions and sign these documents.

A POA is a document that allows another person to step into your shoes and make certain decisions and take certain actions regarding the financial parts of your life. It should be customized to provide agents with authority regarding specific tasks with which you may need assistance.

An HCP names an agent to make medical decisions on one’s behalf if the person is deemed incapacitated and incapable of making their own informed health care decisions. A person with capacity will make their own medical decisions, and an HCP agent cannot override their medical wishes.

To lawfully execute these documents, an individual must be a competent adult over the age of 18 and must understand the nature and consequences of the powers they are giving their agent at the time of signing. Meeting with an experienced estate planning attorney is especially important when creating a POA. It is important for an attorney to ask questions that confirm a client’s understanding of the powerful consequences provided by the documents, rather than glazing over uncomfortable realities for the purpose of ease.

If a person does not have the mental capacity to sign either of these documents, an Article 81 guardianship may be appropriate. This guardianship is tailored to the individual and is intended to promote autonomy where possible. A guardian may be appointed to manage personal needs and assets. Courts must consider available alternatives before appointing a guardian.

Guardianships can be commenced by a friend or family member; however, the process can be difficult to navigate without legal counsel. The legal proceeding is meant to determine whether someone is incapacitated, who is the appropriate person to serve as guardian, and what powers the guardian will have. Among other requirements, the guardian must provide an annual accounting to the court.

Navigating cognitive decline and delegating financial and medical responsibilities can be a very emotional process. Those who are recognizing changes in their older loved ones are usually forced to grapple with respecting a loved one’s independent decision-making while advocating for what is in their loved one’s holistic best interest.

— Erin Cullen, Esq.

Erin Cullen, Esq. is an associate attorney at Burner Prudenti Law, P.C., focusing her practice on Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the East End of Long Island with offices located [COPY INCOMPLETE].

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