Estate Tools to Avoid Guardianship in New York

When people become incapacitated and cannot make decisions regarding their own finances or healthcare, someone may want to seek guardianship over them. Guardianship cases can prove extremely contentious and complicated and can put unnecessary stress on the loved ones who are deciding how to care for the incapacitated person. Fortunately, you can take several steps now to prevent the need for a guardianship case should something happen to you.

The following are brief explanations of some legal tools that you can use to avoid a guardianship in the future. To discuss the best comprehensive plan for your specific circumstances, please contact the estate planning and elder law firm of Goldfarb Abrandt Salzman & Kutzin directly.

Powers of Attorney

A power of attorney is a legal tool that gives another party authority to make legal and financial decisions on your behalf. You can designate the person who will have this authority, as well as the scope of that authority. One of the most common uses of a power of attorney is to give someone the power to handle your finances, property, and legal affairs if you become incapacitated.

New York has specific requirements for implementing a power of attorney and has a statutory form that should be used.

This form is “durable” by default. A durable power of attorney goes into immediate effect and survives your incapacitation, only ending upon your revocation or death.  You can insert a modification in the power of attorney form to make it “spinging.” A springing power of attorney does not take effect right away. Instead, you can designate an event that causes the authority to “spring up.” An illness or injury that leaves you incapacitated can constitute such an event. It prevents anyone from exercising any authority before that time.

A skilled estate planning and elder law attorney can discuss your options with you, then properly complete and have you sign all documentation in accordance with New York law and with your wishes. Putting an effective power of attorney in place eliminates the need for a guardian to manage your financial and legal affairs.

Healthcare Proxies and Living Wills

While a power of attorney allows someone to pay your bills and manage your accounts, it does not give authority to make decisions regarding your medical care or your personal health and well-being. This is an important matter, however, as incapacitated people often require a high level of medical care. A healthcare proxy is a legal document with which you designate someone with the authority to make these decisions.

Anyone you designate to make healthcare decisions should understand your own wishes for your care. You must trust them to abide by your wishes. This includes whether you want to remain on life support for an extended or indefinite period. Your agent must know your wishes regarding feeding and hydration in order to make decisions regarding those issues. You can also draft a document called a living will that serves as a directive for your healthcare proxy to follow. An attorney can assist you with selecting the right healthcare proxy, accurately executing the legal documentation, and ensuring that you cover all appropriate topics in your living will. This can help ensure your proper care without the need for a court-appointed guardianship.

Revocable Living Trusts

Establishing and funding a living trust is another way to avoid the need for a guardianship. A trust involves three main players—the creator of the trust (called the grantor), a trustee, and designated beneficiaries. The grantor establishes a trust and transfers assets to the ownership of the trust. The trustee then manages and controls the assets of the trust, and eventually distributes the trust property to the beneficiaries. When you create your own revocable living trust, you will likely serve as the grantor, trustee, and beneficiary of the trust as long as you are capable.

An important part of creating a trust is designating a successor trustee who will step up and manage the trust after you pass away. Your successor trustee will also serve as trustee if you become incapacitated and cannot do so yourself.

If the trust owns all of your property and assets, the trustee can manage them and you may not need a guardian to take over your accounts. Review all of your assets with your attorney to ensure your living trust protects everything possible. For example, you may make the trust the beneficiary of your life insurance policy, but this does not allow a disability trustee to control the policy while you remain alive. Instead, you may wish to transfer ownership of the policy to the trust.

You may not transfer all accounts to your trust. For example, retirement accounts are “individual” accounts and are cannot be owned by a revocable trust while you are alive.  This is one reason why you need a comprehensive plan—you may need a power of attorney to handle such accounts even though you have established a revocable living trust.

Overall, taking steps to avoid a future guardianship whenever possible can preserve your estate and save your family from significant stress. It is worth the time to plan ahead for your own care now, because you never know when you may suffer a sudden and debilitating injury or illness.

Contact Our New York Estate Planning Attorneys for More Information

Do not leave your own care or the care of your loved ones to chance. Consult a New York estate planning attorney to engage in strategic legal planning that will protect you should you become unable to care for yourself.

The estate planning and elder law attorneys at Goldfarb Abrandt Salzman & Kutzin have decades of experience helping families execute powers of attorney, healthcare proxies, trusts, and other legal tools that effectively protect you and your family from unnecessary complications. Call (212) 387-8400 or contact us online today to schedule your consultation.