Estate Planning Isn’t Just For The Elderly

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Is the Commencement of a Guardianship Proceeding Necessary?

*By Anthony J. Enea, Esq.

The decision to commence an Article 81 Guardianship Proceeding necessitates the consideration of numerous factors ranging from the urgency of commencing the proceeding to the ultimate relief and powers sought. However, one inquiry that needs to made at the very outset is whether there is a need to commence the proceeding or are there other alternatives available.

A. Section 81.02 of the Mental Hygiene Law requires that the appointment of a guardian must be “necessary” to meet the alleged incapacitated person’s (AIP’s) needs for property management, personal care or both. In deciding whether a guardian is necessary, §81.02 (a)2. specifically provides that the court shall consider the sufficiency and reliability of available resources as defined in §81.03 to provide for personal needs or property management without the appointment of a guardian. §81.03(e) defines available resources to mean “resources such as, but not limited to, visiting nurses, homemakers, home health aides, adult day care and multipurpose senior citizen centers, powers of attorney, health care proxies, trusts, representative and protective payees, and residential care facilities.”1

Thus, assessing the personal needs of the AIP is an important and critical pre-petition consideration. This would necessitate obtaining detailed information prior to commencing the proceeding as to the AIP’s ability to perform the activities of daily lives (ADL’s), such as ambulating, feeding, cooking, dressing, bathing and toileting, and whether or not he or she is presently receiving any assistance with said ADL’s from the available resources given as examples in §81.03 (e) or other available resources. In addition, it is important to obtain information as to the AIP’s social interactions and the level of his or her ability to socially interact. For example, is he or she able to drive an automobile, go shopping for food, clothing and other essentials? Is he or she able to make his or her wishes known? What level of communication is the AIP capable of? Can the AIP speak clearly? Can the AIP read, write and speak in the English language? Can the AIP read and understand bank records? Can the AIP pay his or her own bills and write checks? All of the aforestated are important considerations and factors to be assessed pre-petition to determine whether the guardianship is a necessary proceeding. 2

B. Section 81.03 (e) in providing a description of various available resources specifically refers to documents that the AIP may have executed, such as powers of attorney, health care proxies, trusts, representative and protective payee arrangements.3 These are, of course, documents that would have impact upon both the AIP’s personal and property management needs. Each of the documents referred to in §81.03 (e) and others such as “Living Will,” “HIPAA” Form (pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended in 2005), and “MOLST” Form (Medical Orders on Life Sustaining Treatment pursuant to Section 2994-dd(6) of the Public Health Law) may obviate the need for a guardianship.4 Additionally, the Health Care Decision Act, §2994-d of the New York Public Health Law, which permits the appointment of surrogate decision makers in the prescribed order of priority when no health care proxy is available, is also something that should be considered pre-petition.5

C. The following are examples of the analysis that should be made with respect to some of the advanced directives and other documents executed by the AIP or that could possibly be executed by the AIP.

(i) Powers of Attorney – The issues that should be addressed when analyzing a Power of Attorney (POA) previously executed by the AIP are which powers have been granted to the agent in the existing POA, and if it is possible for the AIP to execute a new POA if the existing POA is insufficient to accomplish the present objectives and needs of the AIP.

The capacity required to execute a power of attorney is defined in §5-1501 2.(c) of the New York General Obligations Law.

§5-1501 2.(c) defines “capacity” as the ability to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a power of attorney, any provision in a power of attorney or the authority of any person to act as agent under a power of attorney.6

Thus, one question that should be addressed pre-petition is whether the AIP could presently comprehend the nature and consequences of executing a POA. This may necessitate an assessment of his or her capacity to understand matters relevant to property management and financial affairs. This issue will of course require extensive questioning of the petitioner relevant to his or her assessment and observations relevant to the capacity of the AIP, and could in some cases necessitate some neurological assessment of the AIP being performed. For example, the AIP’s treating physician may be able to perform a mini mental status exam. If the attorney for the proposed petitioner meets with the AIP (pre-petition), it could raise possible conflicts of interests’ issues for the attorney if he or she will later be representing the petitioner in the guardianship proceeding. Thus, it may be advisable for the petitioner’s attorney not to meet with the AIP. It is something that should be very carefully evaluated by the attorney. If a POA has been previously executed by the AIP, the attorney for the petitioner should engage in a thorough examination of the original POA (if available), including obtaining information from the petitioner as to the level of capacity of the AIP at or about the time of the execution of the POA if it was executed in close proximity to the possible commencement of the guardianship proceeding. Any analysis of the POA necessitates a determination as to whether the POA is a “durable”, “non durable” or “springing” power of attorney.

A “durable” power of attorney is one which is defined to survive the subsequent incapacity or disability of the principal.

A “springing” power of attorney is one which becomes effective upon the occurrence of a specific event (incapacity, etc.)

In reviewing a POA it is important to determine what powers have been granted to the agent. For example, has the agent been granted the authority to sell the AIP’s real estate, create trusts (revocable/irrevocable), file tax returns as well as banking and investment powers?

The broader the powers granted the lesser the necessity to commence a guardianship for the property becomes.

One area of particular importance in reviewing a POA pre-petition is whether or not the agent has been granted broad gifting powers by the principal. This is of particular importance in being able to implement estate and elder law planning for the AIP. All too often POA’s lack sufficient gifting powers, thus, resulting in the need for a guardianship proceeding so as to permit transfers of the AIP’s assets so that he or she may qualify for Medicaid. Once the POA has been thoroughly reviewed by the attorney, he or she will be able to determine whether there exists the need for a guardianship of the property with full property management powers, or whether a guardianship with more limited property management powers will be sufficient. Additionally, the assessment of the POA will help the attorney determine whether or not it is possible to utilize what is known as a “single transaction” guardianship, one which limits the appointment of the guardian for the purpose of doing a specific limited function. For example, transferring real property from one spouse to another.

(ii) A health care proxy is a writing which allows one to appoint an agent/proxy to make health care decisions for him or herself when he or she is unable to do so. Public Health Law §2981.7 The existence of a properly executed health care proxy may in many cases obviate the need for the appointment of a guardian of the person for the AIP. The agent/proxy is able to make decisions regarding medical and dental treatment, hospitalizations, life sustaining treatments, and if he or she knows the principal’s wishes, decisions regarding artificial nutrition and hydration.

The attorney should carefully review the health care proxy to determine the extent of the powers granted therein and whether any limitations have been place upon the proxy’s ability to make medical decisions. §2981(b)of the Public Health Law provides that every adult shall be presumed competent to appoint a health care agent unless such person has been adjudicated incompetent or otherwise adjudged not competent to appoint a health care agent.8

The health care agent shall make health care decisions in accordance with the principal’s wishes, including the principal’s moral and religious beliefs, and if the principal’s wishes are not known and can’t be reasonably ascertained in accordance with the principal’s best interests. The health care proxy clearly allows the agent/proxy to make many decisions as to the AIP’s person that in many cases may make a guardianship unnecessary.

Considerations should also be given to whether there exists the possibility that the AIP has the capacity to presently execute a health care proxy. It should also be noted that health care proxies also contain the authorization to obtain hospital and medical records in compliance with HIPAA.9

(iii) The existence of a Trust (revocable and/or irrevocable) executed by the AIP for his or her benefit or others is another important document which necessitates review and analysis. The provisions of the Trust with respect to the management of trust assets during the lifetime AIP/beneficiary of the Trust (particularly any provisions relevant to the incapacity or disability of the AIP/beneficiary) are of significant importance. Perhaps one of the most important determinations that needs to be made is whether any of the AIP’s assets have been actually transferred to the Trust, and are thus, subject to administration by the trustee(s). This analysis will require that the attorney obtain, for example, copies of any deeds documenting the transfer of title of real estate to the trust as well as copies of account statements evidencing that the AIP’s liquid assets have been transferred to the Trust.

The prior funding of the Trust with all of the assets of the AIP may obviate the need for a guardian of the property for the AIP if the Trust contains provisions delineating the powers of the alternate trustees upon the disability and/or incapacity of the Grantor/AIP. It will be, of course, important for the attorney to carefully review which powers have been granted to the trustee(s) with respect to the trust assets i.e., relevant to the management of trust assets, transferring/gifting of trust assets, funding a special needs trust, amending, revoking and/or creating and funding new trusts, the investment powers, bill paying and powers relevant to the day to day financial affairs of the AIP. The granting of the aforesaid powers in the trust may go a long way in obviating the need for a guardian of the property.

(iv) One of the problems often resulting from the incapacity of an individual, particularly mental incapacity, is the inability to obtain medical and hospital records for said individual if a guardian of the person has not been appointed. With the enactment of the Health Insurance Portability and Accountability Act of 2005 (HIPAA) and the creation of a form for Authorization for Release of Health Information pursuant to HIPAA, (OCA official form 960), Public Health Law 104-191, 45 CFR (Code of Federal Regulations) part 160, subparts A, B, C, D, E, it is now possible for one to appoint an agent to obtain medical (doctor/dental/pharmaceutical) and hospital records if a HIPAA form has been executed. The HIPAA form also allows the agent, if the appropriate sections of the form have been initialed, to obtain medical records regarding alcohol and drug treatment, mental health information and HIV related information.10

(v) Another advance directive which has been gaining popularity as of late is a “Medical Orders for Life Sustaining Treatment” Form (MOLST), see Public Health Law §2994-dd(6). The MOLST form advises third parties of the patient’s wishes for life sustaining treatment. It is a form that is completed by a health care professional and signed by a physician which delineates the patient’s wishes based on the patient’s current medical condition, wishes and values. It is a form generally utilized for patients with serious medical conditions. The MOLST form is not intended for patients whom are minors, have developmental disabilities, lack medical decision making or patients in a mental health facility with a mental illness. It is many ways an enhanced version of a Do-Not Resuscitate Order (DNR).11Again, a determination should be made pre-Petition regarding the existence of a MOLST form or even a DNR executed by the AIP.

In conclusion, it is clear that great caution and care should be given in assessing the necessity of commencing a guardianship proceeding. In doing so, it is imperative that one thoroughly analyze any and all advance directives executed by the AIP. Doing so may, in many cases, limit the overall scope and perhaps the need for a guardianship.

1Sections 81.02(a)2, 81.03 and 81.03(e) of the Mental Hygiene Law (MHL)

2Section 81.03(e) of the MHL


4Section 81.03(e) of MHL, Sections 4201 and 2994-dd(6) of the Public Health Law

5Section 2994-d of the Public Health Law

6Section 1501 2.C of the General Obligations Law

7Section 2981 of the Public Health Law


9Section 4201 of the Public Health Law

10Section 104-191 of the Public Health Law, 45CFR Part 160 A, B, C, D, and E

11Section 2994-dd(6) of the Public Health Law

Enea, Scanlan & Sirignano, LLP