Taking Care of Your Elders and How to Avoid Guardianship

Volkova Law Group PLLC on May 29, 2014

This last week has been a bit of whirlwind for me.

I taught a continuing legal education class at Pace Law School, funded a trust, and tackled a complicated estate plan for a busy professional.

Most importantly, I got appointed as a guardian to a mentally ill elderly person.

This is a professional and personal milestone for me: I know I can do it, and I feel grateful that we live in a state that has decent safeguards in place to protect the interests of those who can’t make competent decisions for themselves.

The system is by no means perfect.

I don’t know much about my client – I need to arrange for groceries to be delivered to her, but I don’t know what she likes to eat. She is not ready to talk to me yet, although the staff in her building seems to know her well and are very supportive.

The reason why I tell you this is that I want you to consider if your loved ones, should they ever become unable to make decisions for themselves, would be better under the care of a court-appointed guardian like me or under the care of the person whom they chose themselves in their power of attorney, health care proxy, or trust?

The time to make this decision is now, while your loved ones are healthy and able to think for themselves.

A guardianship proceeding under New York’s Article 81 is an expensive and time consuming process.

If a person is unable to manage their financial affairs or take care of their daily living activities, and they do not have any valid advance directives, then a hearing must be held before a Judge to decide if the person is in fact incompetent and who should be appointed as their Guardian. The Judge has discretion to appoint a Guardian who they believe would be in the best interest of the incapacitated person. That guardian, however, may be a complete stranger.

So with that said, the difficult question for many people of course is: how do I raise this complicated question with my older parents?

It is uncomfortable and scary, I know. However the value of what you give your parents, grandparents, or aunts and uncles is dignity.

You are empowering them.

If you proceed from that place, you will find that they will eventually be grateful for your foresight and commitment to them.

We are here to help.

If this has been on your mind, email us at elena@volkovalaw.com for tips on how to raise this difficult topic with your loved ones.

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