According to a recent report published by the Alzheimer’s Association, in 2017, approximately 5.5 million individuals have “Alzheimer’s dementia”. If you consider those figures, together with the many other neurological diseases (ALS) and physical ailments (strokes) that impact our physical and cognitive abilities, you can understand why planning should be done to contemplate these matters.
The proper way to plan for these uncertainties is to meet with an elder law attorney to prepare a power of attorney and statutory gifts rider with all the bells and whistles. Unfortunately, there are many people who either choose not to plan or simply do not plan for these cognitive and physical impairments that limit your functionality. Where these individuals require assistance with financial and/or personal matters, it becomes necessary to seek a court appointed guardian.
In many cases, guardianships are used for planning purposes. For instance, it may be possible to obtain Medicaid eligibility for an AIP in a nursing home, however, the assets of the AIP must first be transferred to his spouse. I would commence a guardianship proceeding to obtain court permission to transfer the AIP’s assets. Once the guardian attends to the transfer of the assets, we can then continue with the Medicaid application process.
Not all guardianships are commenced for planning purposes. Sometimes, family members use the guardianship process to fight over control of a loved one’s care and financial affairs. These are contested guardianships the necessitate counsel for all parties, including the AIP. Guardianships are also commenced by government agencies where people are being neglected or have no one to help care for their needs.
The guardianship process begins with the preparation and filing of a petition in Supreme Court. The petition is the document that tells a story to the Court about the person in need of assistance. That person is usually referred to as the alleged incapacitated person (AIP). Guardianship proceedings are usually commenced by family members but they can also be commenced by any person concerned with the welfare of the AIP.
Generally, within a few weeks after filing the petition, the court will hold a hearing at which time the parties must appear to present the case to the court. Unless the attorney for the AIP dispenses with the AIP’s presence, the AIP must also appear. At the hearing, all parties will have an opportunity to present any information in support of or against the petition. If the court determines that the AIP has functional limitations, it will appoint a guardian.
Usually, the petitioner will request the appointment of a specific person to be the guardian. If there is no person, the court will generally appoint some suitable person, which may include a court appointed attorney. In most cases, a family member or close relative will be appointed by the court.
After the hearing, and upon completion of some paperwork with the court, the court appointed guardian can attend to the matters that necessitated the guardianship. If the purpose of the guardianship was to transfer assets, the guardian can attend to the signing of a deed or visit the bank to complete such transaction.
While proper measures should be taken to avoid the need for a guardian, you should not be fearful if you are forced to navigate the process. We can assist with all types of guardianship matters. Please contact us at 914-245-2440 or by e-mail at firstname.lastname@example.org. Please also visit our website at www.plantodayfortomorrow.com.