Q. I’ve been having trouble taking care of my daily affairs, mostly in regard to finances and maintaining my house. My adult son wants to become my legal guardian. What exactly would he be able do if I agree to this?
A. A court will name a guardian only if a person has become incapacitated to some extent and he or she did not grant anyone durable power of attorney, which is a power of attorney that remains effective after the grantor’s incapacitation.
The authority a guardian would have over an incapacitated person largely depends on the extent to which he or she is incapable of handling his or her personal needs or managing his or her assets. Article 81 of New York’s Mental Hygiene Law, which outlines the limitations and responsibilities of guardians, states a court (usually a county’s Supreme Court) can approve guardianships to the extent that they provide the “least restrictive form of intervention.”
In some cases, people are functional enough to take care of their personal needs, such as food, clothing, shelter, safety, and health care, but they cannot manage their property.
Under such circumstances, a court could grant the guardian with the power to manage the incapacitated person’s property and financial affairs and provide maintenance and support not only to him or her but also to his or her dependents. When asset transfers are involved, the law says the guardian must conduct them “on the ground that the incapacitated person would have made the transfer if he or she had the capacity to act.”
Guardians with property management powers can make gifts, provide support to the incapacitated person’s dependents, apply for government or private benefits, marshal assets, and exercise options to buy stock or other property. Such guardians can also enter into contracts, create revocable or irrevocable trusts, pay bills, hire an accountant, and lease the incapacitated person’s primary residence for up to three years. However, if any of these duties requires the transfer of assets to another person or to the incapacitated person, the guardian must submit to the court a petition detailing what is being transferred and why and other matters.
Guardians must be at least at least 18 years old and guardianships are not limited to a spouse, adult child, sibling or parent. Guardians are required to visit the incapacitated person at least four times a year and file initial and annual reports. They must also undergo special training. Some requirements that exclusively apply to guardians with property management authority include preserving, protecting and accounting for all financial resources and property and determining whether the incapacitated person executed a will, learning its location and notifying the appropriate people after the testor’s death. Such guardians must also file property information with the county recorder and deliver the property to whom it belongs at the appointment’s conclusion.
Perhaps most importantly, the law requires guardians to provide the incapacitated person with the “greatest amount of independence and self-determination” when considering his or her functional level, personal wishes, preferences and desires. People interested in executing a durable power of attorney, appointing someone as their guardian, or being appointed someone else’s guardian should consult with an elder law attorney.
Mathew B. Tully, Esq., is the founding partner at Tully Rinckey PLLC, a full-service law firm in Albany. If you would like your legal question or topic answered in the next issue, contact Tully at 218-7100 or [email protected].
