Unfortunately, many people have family members who have exhibited signs of dementia or Alzheimer's Disease or have become incapacitated due to a stroke or other medical issues. During these trying times, individuals often seek the advice of an elder law attorney to plan for the future. Part of that planning may include execution of documents that will allow a family member(s) to manage the financial and medical affairs of the ill relative.

It is always better to execute documents in advance of becoming ill if the individual can express a desire to appoint an attorney-in-fact (using a power of attorney) and a health care agent. Without a durable power of attorney, no other person has the authority to access an incapacitated individual's funds.

In instances where an individual does not have the capacity to appoint an agent on a power of attorney and health care proxy, it is necessary to initiate a proceeding to appoint a guardian for the “alleged incapacitated person” (AIP). Guardianship proceedings are governed by Article 81 of the Mental Hygiene Law, which states that “the determination of incapacity shall be based on clear and convincing evidence… that a person is likely to suffer harm because [he/she] is no longer able to provide for personal needs and property management and cannot adequately understand and appreciate the nature and consequences of such inability”.

The proceeding is typically brought in the Supreme Court where the AIP resides or is physically present. A proceeding may be initiated by the AIP, a distributee or beneficiary of the AIP's estate, an executor of the AIP's estate, trustee of a trust for which the AIP is a beneficiary or grantor, a person with whom the AIP lives, someone who is concerned with the welfare of the AIP, or the administrator of a facility in which the AIP resides.

The AIP and all interested parties must receive notice that a proceeding has been commenced. The notice is in the form of a Petition and an Order to Show Cause why a guardian should not be appointed for the AIP. The Petition and Order are served upon the AIP and all interested parties, who include the spouse, parents, children, siblings, and person(s) who live(s) with the AIP. Once the AIP receives notice, he/she has the right to request an attorney.

Upon commencement of a proceeding, the judge appoints a “Court Evaluator,” typically an attorney whose duties include interviewing the AIP and the petitioner, determining whether the person can understand the nature and possible consequences of the proceeding and all it involves, and investigating and making a written report and recommendations to the court.

A hearing must be conducted no later than twenty-eight days from the signing of the Order to Show Cause. The Petitioner has the burden of proving incapacity by “clear and convincing evidence.” Often the court evaluator testifies at the hearing and his/her report is then admitted into evidence.

All parties to a guardianship proceeding may present evidence, call witnesses, and crossexamine witnesses. The hearing must be conducted in front of the AIP unless the person is not located in the state or is completely unable to or cannot meaningfully participate in the hearing. Many of our clients are children or spouses of an AIP who may suffer from Alzheimer's disease or severe dementia. In these cases, the hearing is held without the attendance of the AIP because he/she is usually unable to meaningfully participate in the proceeding.

The Court is required to render a decision within seven days of the hearing. The Court decides whether the guardian has authority to act regarding the AIP's property management, personal needs, or both. If the Court finds that the AIP is not incapacitated, the court will dismiss the petition. If the AIP is found to be an incapacitated person (“IP”), the court will order the appointment of a guardian with the intention of effecting the least restrictive form of intervention. After the hearing, the attorney prepares an Order and Judgment for the judge to sign, and it must be served on all interested parties within ten days of the signing.

Any individual over eighteen years of age, a parent of a minor child, a not-for-profit corporation, a social services official, or a public agency may be appointed guardian. In making the appointment, the court considers the existence of a power of attorney, the social relationship between the IP and the proposed guardian, and the social relationship between the IP and other persons concerned with the IP's welfare. Also considered are the care and services being provided to the IP.

Guardians have a duty to afford the IP as much independence as possible. Personal needs guardians must visit the incapacitated person at least four times a year. Guardians over property must preserve, protect, and account for financial resources, and use the resources and income to maintain support of the IP.

A guardian's powers (requested in the petition) are authorized specifically by the court. A personal property guardian's powers may include the power to make gifts, convey property, enter into contracts, create revocable and irrevocable trusts, engage in Medicaid planning and pay bills. A personal needs guardian's powers may include the power to determine who shall provide personal care, determine whether the incapacitated person can travel, apply for government and private benefits, consent to or refuse generally accepted routine or major medical or dental provisions, and choose the IP's place of abode.

The court typically requires the guardian to designate a clerk to receive process and to file a bond. Within five days after a guardian has filed the Designation and bond, the clerk will issue the Commission, which allows the guardian to begin to act on behalf of the IP. Guardians must file an initial report no later than ninety days after issuance of the commission. They must subsequently file an annual report in May of each year. The reports are examined by and subject to the approval of the court examiner. Guardians are entitled to reasonable compensation as determined by the court.