For many people the thought that you may one day be unable to manage your finances or make decisions for yourself is daunting. This is the reason so many people do not make plans for their possible incapacity. Unfortunately, if you do not have the proper legal documents in place and you become incapacitated, it may be necessary for your family to ask the Court to appoint a guardian for you.
This process is much more expensive than implementing an estate plan that will protect you in the event of possible incapacity. The difference in cost is astronomical; a guardianship proceeding will easily cost at least $5,000. The cost to have a Power of Attorney, Will and Health Care Proxy will be less than $1,000 for most people.
Aside from the cost differences, the guardianship proceeding requires the appointment of an independent attorney to review the facts of the case and make a recommendation to the Court, and requires the appearance of the incapacitated person at the Court hearing.
This is a very intrusive way to go about obtaining the ability to manage someone’s finances and health which could be avoided by signing a Power of Attorney and Health Care Proxy. If it becomes necessary for you to consider a guardianship proceeding for your family member, you will want to have a basic knowledge and understanding of their income and expenses and also a specific list of what activities with which the family member requires assistance.
The Court will want to narrowly tailor a specific list of guardianship powers based upon the needs of the family member. There is a laundry list of powers that can be given to the guardian based on the specific needs of the family member and the outcome of the court proceeding, including:
- Make gifts;
- Enter into contracts;
- Create revocable and irrevocable trusts;
- Access and release of confidential records;
- Apply for government and private benefits;
- Pay funeral expenses;
- Pay bills as necessary;
- Make investments and hire an investment advisor as well as other professionals.
In addition to financial powers, there are several personal powers the guardian can utilize if appropriate:
- Determine who should provide personal care or assistance;
- Make decisions regarding social life;
- Decisions about travel;
- Determine whether the person should have a license to drive;
- Authorize access to confidential records;
- Make decisions regarding education; and
- Apply for government and private benefits.
There are certain powers that will require additional authority from the Court before they can be exercised, including selling the family member’s personal residence and admitting the person to a nursing home.
In addition to the costs associated with obtaining guardianship, there are annual reporting requirements for the guardian to disclose the manner in which they manage the assets and personal needs of the family member, together with preliminary training the guardian must receive before they can act.
If you have a family member who you think may be in need of a guardianship and they have not done any advanced planning, you should consider consulting with an attorney as soon as possible. We have worked with families to obtain guardianships across New York State and provide an initial no-cost consultation to discuss these possible actions. Contact us today firstname.lastname@example.org or (315) 728-9433.