In the United States, we can expect to live, on average, almost twice as long as our ancestors did just a century ago. Despite living longer, the natural aging process will still cause physical and mental deterioration at some point before the end of our lives. It may even cause you to reach a point at which you can no longer safely make decisions for yourself. Understandably, you probably do not like the idea of turning over the decision-making authority to someone else; however, the reality is that at some point it may be necessary. The good news is that if you plan ahead, you can choose the person to whom you hand over that authority instead of letting a court decide through a guardianship petition. The Harrison guardianship lawyers at the Law Offices of Kobrick & Moccia explain how steps you take now can avoid guardianship in the future.
What Is Guardianship?
Guardianship is a legal process that grants the Guardian authority to care for and make decisions on behalf of an incapacitated person. To gain guardianship over someone, a petition must be filed with the appropriate court and the request evaluated by a judge after a hearing. New York recognizes three types of guardianship, including:
- Guardian of the person. A guardian of the person can make life decisions for the ward like health care, education, and welfare decisions.
- Guardian of the property. A guardian of the property handles decisions about the ward’s money, investments and savings as directed by a Judge. A guardian of the property must file an annual report about the property.
- Guardian of the person and property. This kind of guardian has responsibility for both the ward’s life decisions and the ward’s property.
Reasons to Avoid Guardianship
Once a Guardian is appointed, that person (or agency) will have a considerable amount of authority over you and your life. Your Guardian may decide where you live, what doctors treat you, and even whether you are allowed to drive or not. A Guardian may also control your finances, encumber your property, and even enter into contracts in your name. Imagine someone appointed by a judge — not chosen by you — having that much control over you and your assets. By planning ahead though, you can choose to whom you hand over that authority.
How Can You Avoid Guardianship?
If having a Guardian does not sound like something you want, planning ahead is the key. The following alternatives can assist you in choosing the person you wish to have control over you and your assets if it becomes necessary:
- Power of Attorney – a Power of Attorney (POA) is a legal document that allow you to grant someone of your choosing (your “Agent”) the authority to act on your behalf in legal matters. A POA can be general or limited. With a general POA your Agent has almost unfettered authority to act on your behalf whereas with a Limited POA the Agent only has the authority specifically enumerated in the POA document. If the POA is a durable POA the authority granted to your Agent will survive your incapacity.
- Advance Directives – An advance directive is a written statement of a person’s wishes regarding medical treatment that is created and executed to ensure those wishes are carried out should the person be unable to communicate them to a doctor. In New York, a Health Care Proxy allows you to appoint an Agent to make decisions for you in the event you are unable to make them yourself because of your incapacity at some point in the future. Your Agent will have the authority to do things such as consent, refuse to consent, or withdraw consent to medical treatment on your behalf. You may also choose to execute a Living Will which lets you state your wishes about health care in the event that you can no longer speak for yourself.
- Revocable Living Trust — a revocable living trust is an excellent incapacity planning tool because it allows you to appoint yourself as the Trustee of the trust and appoint someone of your choosing as the Successor Trustee. You then transfer assets into and out of the trust throughout your lifetime, maintaining the ability to control and manage those assets as the Trustee. If you become incapacitated, your designated Successor Trustee takes over control of those assets automatically, without the need for court intervention.
Contact Harrison Guardianship Lawyers
Please feel free to download our FREE estate planning worksheet. If you have additional questions or concerns regarding guardianship, contact the New York guardianship lawyers at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.