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Guardianship
What
is guardianship? Guardianship is a legal process
consisting of a court-appointed relationship between
a competent adult and a person over the age of eighteen
whose dis-ability renders him/her unable to make an
informed decision or at risk of doing harm to self
or others due to an inability to manage his/her own
affairs. The incapacitating disability may be caused
by mental illness, developmental disability, aging
or other factors. A guardian is defined as a person
who has been entrusted by the Surrogate Court with
the care of another person, for the person's property,
or for the care of both person and property.
Who
can be a guardian? A guardian can be a friend,
family member, neighbor, or a professional who has
been trained to carry out guardianship functions.
Corporate guardianship is also an option for those
who have no one to serve as guardian. Corporate guardians
can be non-profit or public organizations, banks,
or other officials who have been deemed able to function
as guardians. It is generally preferred that the guardian
reside in the same state as the ward; however, direct
or adopted close relatives (e.g. adult children, spouses,
nieces, nephews, aunts, uncles) are eligible to become
guardians, regardless of residence. When deciding
on a guardian, it is also advisable to think of who
could be a stand-by or alternate guardian, in case
something should render the proposed primary guardian
unable to carry out the guardianship duties.
According
to law, a guardian must be over eighteen, be deemed
by the court as able to serve in the guardianship
capacity, never convicted of a felony, not a professional
providing services to the ward, and not be in debt
to the ward.
How
does guardianship work? In guardianship, the
court gives the guardian the ability to make decisions
on behalf of the ward. This takes power away from
the ward. Because of this, the law allows for two
types of guardianship: guardianship of the person
and guardianship of the property. For both types of
guardianship, there may be limitations placed on the
guardian's power, depending on the mental capacity
of the person involved.
Guardianship
of the person entails decisions and oversight in areas
such as housing, education, standard of living, consent/refusal
of medical treatments, acquisition of clothing and
personal possessions, access and release of confidential
records, counseling/therapy services, and travel decisions.
These are only some of the areas in which the guardian
may exercise decision-making power to ensure the ward's
safety and well-being. As stated before, the court
can limit the decision-making power of the guardian.
For example, the person may be deemed able to make
decisions about where he/she wants to live, but not
about medical or mental health treatment. The court
may limit the petition of guardianship accordingly.
Guardianship
of the property entails management of the ward's financial
affairs. This may be voluntary or involuntary guardianship.
If the person is competent most of the time and voluntarily
selects someone else to oversee financial matters,
this is voluntary. If the person is found unable to
handle financial matters by the court, an involuntary
guardianship of the property may be ordered. Guardianship
of the property may be plenary or limited. Plenary
guardianship means that the person needs to have a
guardian manage the entire financial estate. Limited
guardianship would provide decision making for only
some parts of the financial estate.
What
duties are required of a guardian? The appointed
guardian can only assume those decision-making rights
and responsibilities that have been taken away from
the ward. Unless limitations have been placed on the
guardianship to allow the ward to retain as much autonomy
as possible, the guardian may be responsible for any
of the following duties:
-
care
for and increase the value of the ward's assets
-
determine
if there is a need to take any type of action
for the ward's benefit
-
maintain
an accurate and concise record of income and expenses
-
file
and maintain
an inventory of assets
-
file
annual financial and guardianship reports petition
the court as needed concerning taking actions
outside guardianship functions
-
make
informed decisions regarding doctors, treatments,
surgeries, and hospitalizations
-
ensure
that any needed services are provided to the ward
in a timely manner
How
does one apply for guardianship? Persons
interested in applying for guardianship on behalf
of a loved one would be well-advised to seek legal
counsel. Application costs for guardianships may
range from $1000 to $2500, depending on whether
the potential ward or another family member contests
the application. Applications are available from
the local county surrogate's courthouse and when
completed and notarized, are returned to the courthouse
with a filing fee. Part of the application includes
waivers of guardianship which must be signed by
all immediate family members, renouncing their intention
to pursue guardianship. Two doctors familiar with
the potential ward must also sign affidavits in
support of the guardianship petition.
Once
this paperwork is submitted to the court, a court-appointed
examiner will review the paperwork and set up appointments
to meet with the potential guardian(s) and ward.
The interview is mandatory and is designed to evaluate
if the person is legally competent to retain any
or all rights of decision-making. Based upon these
interviews, the examiner writes a report containing
recommendations for guardianship of the person and/or
property and any limitations the examiner feels
should be imposed as safeguards for the ward.
After
the surrogate judge reviews the petition and examiner's
report, a hearing is scheduled. Normally, both the
potential guardian(s) and ward must attend; however,
in some extenuating circumstances the ward may be
excused from the hearing. This only happens when
both doctors who initially filled out the affidavits
from the guardianship application packet believe
that the person would be adversely effected by attendance
at the hearing and the examiner concurs. At the
court hearing, a decision is decreed by the judge.
If either or both types of guardianship are ordered,
the guardian is given directions concerning what
reports must be submitted to the court and when
they are due.
What
if a guardian is doing a poor job? If ward
or family members feel that the guardian is not
fulfilling the obligations and responsibilities
of guardianship adequately, they can petition the
court to revoke the guardianship decree or appoint
another guardian. The court will usually appoint
an examiner to investigate the complaint and rule
based on the investigation outcome. Often, the problems
can be resolved. However, if any malfeasance, abuse
or neglect is found to have occurred, the guardian
will not only be removed as guardian, but may also
be prosecuted. If there is a stand-by guardian,
often the stand-by will be asked to step in. If
that is the case, the stand-by can immediately begin
to assume the guardianship role, but he/she must
also apply to become the primary guardian.
Can
guardianship be terminated or modified? Guardianship
can, and should be, changed according to the needs
of the ward. If the person becomes able to take
back certain decision-making rights-for example
in vocational and housing decisions-the guardianship
should be amended through the court as soon as possible.
There are circumstances where a person may recover
enough to take back the decisions regarding his/her
person, but may not be able to handle finances,
or vice versa. Guardianship, as written in law,
is meant to be an individually tailored legally
binding arrangement that can change as the person's
needs and abilities change. In some cases, the person
may recover enough to no longer need guardianship.
Guardianship can then be terminated. Some wards
who have had their guardianship terminated have
put in place powers of attorney or health care proxies
to cover decision-making needs in the event that
they should decompensate medically or mentally.
Are there less restrictive alternatives to
guardianship? Yes, some alternatives may
better serve the person who needs assistance with
decision-making. For example, persons in need of
help paying bills and handling month-to-month financial
decisions may want to pursue a representative payee.
A representative payee is someone appointed to manage
social security, veterans' benefits, welfare assistance
or other state/federal benefits on behalf of an
individual.
Power
of attorney is a legal contract between two individuals
in which one person gives another the authority
to make decisions on his or her behalf. These decisions
could be medical, day-to-day, financial or other
types of decisions. The individual giving someone
the power of attorney must be considered legally
mentally competent to make this decision. Durable
power of attorney enables the power of attorney
to remain in effect when the individual becomes
mentally incapacitated.
The
best way to decide which alternative will work best
is to gather information on all the alternatives
and to talk to the individual, close family members,
therapist, doctor, and anyone else close to the
person. Information can be obtained by contacting
the National Guardianship Association at their web
site at http://www.guardianship.org/
or by calling 520-881-6561. Another excellent resource
is the Future Care Planning Clearinghouse; they
can be reached at 718-652-3469 or 800-652-2090.
Information and assistance can also be obtained
by contacting an attorney who is familiar with guardianship
proceedings.
Health
Care Proxies
What
is a health care proxy? A health care proxy
is a legal document that a person fills out, signs
and has witnessed by two other people. This document
appoints someone of the person's choice to make
health care decisions for him or her if he/she is
unable to make the decisions. A proxy is a person
who has been given authority to act as an agent
for another person. On the proxy form, there are
several blank lines where a person can make specific
wishes known. All hospitals, doctors and other health
care facilities are legally bound to honor the decisions
stated in the health care proxy.
Who
should have a health proxy? Appointing a
health care proxy is optional, but it is a good
idea for anyone, no matter what age or general health
condition, to have one. For persons with mental
illness and their loved ones, this document can
be especially helpful. It will give the individual
a chance to make his or her wishes known. It is
important that the document be signed when the person
is doing well psychologically, so there won't be
questions as to what the true wishes are. It can
also ease the burden for loved ones who would otherwise
have to make agonizing decisions, allowing them
to follow the person's wishes.
Who
can be a proxy? A proxy can be a family
member, friend, partner, or other trusted person.
It is very beneficial to have an alternate proxy
named on the form, as well, in case the primary
proxy is not available for some reason. It is extremely
critical to sit down with the prospective proxy
and alternate proxy to be sure that they will be
able to follow the individual's wishes, should the
proxy need to be used. Though it is not necessary,
it is generally an excellent idea to have a proxy
notarized at the time of completion. No lawyer is
necessary to assign a proxy.
Where
can I get a health care proxy? A proxy is
a standardized form, available from all hospitals,
on many health related web sites and from many physicians.
Why
have a health care proxy? Without a health
care proxy, a person's doctor may be required to
provide medical treatment that that person would
have ordinarily refused if he or she were able to
do so. Such treatments could include artificial
nutrition or hydration, a respirator, or CPR when
terminally ill or comatose with no hope for recovery.
The proxy will take effect only when the person
becomes unable to make informed decisions, as determined
by the doctor. Otherwise, the person retains complete
autonomy over his or her decisions.
When
does the health care proxy expire? The health
care proxy does not expire until death, unless the
person revokes the proxy or signs another one at
a later date, naming another proxy. It is a person's
right, however, to state a date, or specify an occurrence,
that would nullify the proxy.
Who
gets a copy of the proxy? When the health
care proxy has been executed, copies should be sent
to the physician, health care agent, alternate agent,
lawyer, close family members, and to local hospitals
for the person's medical record. It is also an excellent
idea to carry a wallet card specifying the existence
of the proxy and where copies can be found. If the
medical caregivers do not know of the existence
of the proxy during life-saving interventions, they
will do all in their power to keep the person alive.
If
you would like more information on health care proxies
or to obtain a copy of a health care proxy, feel
free to contact NAMI-NYS at 800-950-3228.
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