Mom needs help with her finances and daily life. She is no longer capable of paying her bills, doing her banking, managing her medications, and is generally failing mentally. As a doting child, you want to help her, but how? Well, you certainly can take her to the doctor, manage her healthcare, bring her groceries, or even have her move into your home. After all, who would not help Mom in her time of need? (That begs the question, left unanswered in this blog entry.) But, what about paying her bills, managing her finances and applying for Medicaid? That requires being an agent under Mom’s Power-of-Attorney. But, Mom never executed one, and she no longer has the capacity to do so.
Now what? Where do you turn when it seems there is nowhere to turn?
New York State Mental Hygiene Law Article 81 to the rescue. This blog entry, and several to follow, will explain some of the benefits, and some of the pitfalls, of applying to be appointed as a guardian for the personal needs and property management of an individual who can no longer take care of himself or herself, if that person meets the legal criteria for such an appointment.
According to the Urban Institute, as well as the United States Census Bureau, the number of Americans ages 65 and over is growing exponentially and is expected to reach 80 million in the next twenty or so years. It is no longer the exception that people live well into their eighties and nineties. Although the subject of an Article 81 proceeding often is an older person, the statute extends its reach to any New York State resident who is “unable to provide” for his or her personal needs or property management, cannot “adequately understand and appreciate the nature and consequences” of that inability, and “is likely to suffer harm” as a result, and requires a judicial determination of incapacity after a hearing by a justice of the New York State Supreme Court based on “clear and convincing evidence.” The reason for the high level of judicial scrutiny is that such a finding and the concomitant appointment of an Article 81 guardian is a limitation on the incapacitated person’s liberty interests.
Who can petition under Article 81 for the appointment a guardian? That is broader than one might think. It includes a relative of the alleged incapacitated person (“AIP”), a person with whom the AIP resides, the director of a facility in which the AIP is a patient or resident, or anyone concerned with the AIP’s welfare. Even the AIP can petition for the appointment of a guardian.
A word to the wise: Take care of your estate planning while you are able. In particular, be sure to execute a Power-of-Attorney. If you have a relative or a friend who can no longer handle his or her activities of daily living, and did not plan for this event, be aware that an Article 81 proceeding can be the remedy. In upcoming blog entries, I will explain the process of commencing and litigating an Article 81 proceeding, but know that help is just an email or telephone call away.
For further information about estate planning or commencing an Article 81 proceeding, please contact Sally M. Donahue, Esq., at email@example.com or at 516-746-8000.