When Is a Guardianship Appropriate?

What is a Power of Attorney, and What is a Health Care Proxy?

A POA is a document that allows another person to step in your shoes and make certain decisions and take certain actions regarding the financial parts of your life. It should be customized to provide agents with authority regarding specific tasks with which you may need assistance.

A HCP names an agent to make medical decisions on one’s behalf if they are deemed incapacitated and incapable of making their own informed healthcare decisions. A person with capacity will make their own medical decision and an HCP agent cannot override their medical wishes.

To lawfully execute these documents, an individual must be a competent adult over the age of eighteen and must understand the nature and consequences of what powers they are giving their agent at the time of the signing. Meeting with an experienced estate planning attorney is especially important when creating a POA. It is important for an attorney to ask questions that confirm a client’s understanding of the powerful consequences provided by the documents, rather than glazing over uncomfortable realities for the purpose of ease.

What if a Person is Unable to Sign a Power of Attorney or Health Care Proxy?

If a person does not have the mental capacity to sign either of these documents, an Article 81 guardianship may be appropriate. This guardianship is tailored to the individual and intends to promote autonomy where possible. A guardian may be appointed to manage personal needs and assets. Courts must consider alternatives available before appointing a guardian.

Guardianships can be commenced by a friend or family member; however, it can be difficult to navigate without legal counseling. The legal proceeding is meant to determine whether someone is incapacitated, who is the appropriate person to serve as guardian, and what powers the guardian will have. Among other requirements, the guardian must provide an annual accounting to the Court.

Navigating cognitive decline and delegating financial and medical responsibilities can be a very emotional process. Those who are recognizing changes in their older loved ones are usually forced to grapple with respecting a loved one’s independent decision making, while advocating what is in their loved one’s wholistic best interest.

By Erin Cullen, Esq. 

Erin Cullen, Esq. is an associate attorney at Burner Prudenti Law, P.C. focusing her practice areas on Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.