By Peter J. Strauss, Esq.

Americans are living longer.  The 2020 US Census demonstrates that the average life expectancy for males was 74.5 years and 80.2 years for females compared with an average 71.9 years fifty years ago. We have come out of the Covid-19 pandemic – albeit with terrible loss of life – but with a better understanding of communicable disease and the likelihood of even greater longevity. That’s the good news. But the bad news is that the demographics also show that half of all persons who attain 85 years of age will be unable to perform the basic activities of daily living because of physical or cognitive illness. The large majority of those incapacitated persons who cannot perform personal and financial tasks for themselves have not signed legal documents designating others to act for them. A guardianship proceeding may be then be the best course of action.

The necessary tools for making health care decisions for another person are the health care declaration (sometimes known as a “living will” or a durable power of attorney for health care) and for making decisions and managing property, a durable power of attorney and a living trust. These documents are commonly referred to as advance directives. Consequently, it becomes necessary to seek the appointment of a guardian (in some states called a “conservator”) via a court proceeding.

If a person – a parent, spouse or child, for example – has not signed advance directives, decisions about her or his medical needs or property management cannot be made.  The consequences can be disastrous. Note that there is one important exception:  In a few states, including New York, a law exists allowing certain persons (in order of priority listed in the law) to make health care decisions, even end of life decisions, when the incapacitated person is a patient in a hospital or a skilled nursing home.

CONSEQUENCES OF FAILURE TO PLAN – THE GUARDIANSHIP PROCEEDING

In such cases the only recourse is for the person who wishes to assist the incapacitated person must seek designation as the incapacitated person’s court appointed guardian (“conservator” in some states). This involves commencing a court proceeding to obtain a judge’s decisions that the person alleged in the petition to be incapacitated does in fact meet the high standards of proof that she or he is without legal capacity by submitting clear and convincing evidence to the court.   The judge will appoint a “court evaluator” or “guardian ad litem” for the AIP (alleged incapacitated person) and probably a court appointed attorney to protect the rights of the AIP.

The rules of evidence, designed to protect the civil rights of the AIP, make the trial to be held quite difficult. And, if the AIP contests the appointment, the proceeding is likely to become contentious and have serious consequences on the relationship between the petitioner and the AIP.

HIGH STANDARDS OF PROOF REQUIRED

A guardianship is commenced by the person seeking the appointment filing a “petition” asserting facts establishing sufficient reasons for a guardian to be appointed.  Supporting affidavits from persons with actual knowledge that support the facts alleged in the petition may be submitted.  The court must appoint an “evaluator” who will make an independent investigation, file a report to the court and testify at the trial.   In some states, including New York, the AIP may request a jury trial on the question of capacity.

At the trial, the petitioner testifies first and may call other witnesses to establish the facts to satisfy the burden of proof. In New York, and to some extent in other states, it is the functioning of the AIP that is critical, not the medical particular diagnosis that may be the cause of the incapacity.  Written evidence and documents may be submitted.  But in New York, the physician treating the AIP cannot testify and is not allowed to submit a report because of the AIP’s rights under the patient-physician privilege of confidentiality.

It is important to keep in mind that, as clearly set forth in the New York guardianship law, the over-riding principal is that if the AIP is judged to be incapacitated, the remedy must be the least restrictive alternative that gives the guardian only those powers limited to what is necessary to assist the now incapacitated person to function in whatever setting is found to be appropriate, allowing her or him to independently perform those functions and activities of which she is capable.

The standard of proof at a trial is high – not “preponderance of the evidence” (the normal civil trial standard of proof) nor “beyond a reasonable doubt” (the criminal case standard of proof) but something in between, “clear and convincing” evidence.

Without medical testimony from the AIP’s present or past treating physician it is not easy to establish that

  • The AIP cannot care for herself
  • The AIP cannot manage her property
  • And, she fails to understand the consequences of her disabilities

The role of the court evaluator is to be the court’s investigator whose job is to make an evaluation of the facts and merits of the petition, submit a written report to the court and will also testify at the trial.  There is also likely to be a lawyer appointed by the judge to protect the AIP’s rights (or she may have hired her own attorney). This is the trend in recent years, although the appointment of a lawyer is mandatory in only a limited number of situations.  Note also that the lawyer for the AIP must advocate for the wishes of the AIP regardless of the lawyer’s person belief that the AIP may need a guardian.

WHEN IS IT TIME TO COMMENCE A GUARDIANSHIP PROCEEDING?

 Assuming it becomes legally necessary because you do not have advance directives, it depends.

First, you need to explore whether there are other means of accessing the AIPs accounts or dealing with the growing issues.  Are you a joint owner or co-signer on a bank account of the AIP?  If the AIP is in a hospital or nursing home, you may have rights under the Family Health Care Decisions Act. Is it possible that the person might have some limited capacity to sign a health care proxy or power of attorney after you seek advice and consult with her physician or elder law attorney.  In some cases where the authority to be given to you as “agent” is tailored to the understanding of the AIP about the consequences of signing the advanced directive, such alternative approach may work.  But if that is not possible, nothing has been lost.

In cases where the AIP is acting out of stubbornness, paranoia or historical family conflict using more modern approaches of dispute resolution (mediation or arbitration), supportive decision-making programs or family counseling may be viable alternatives.

The process of convincing your parent, spouse or child to engage in “long term care planning” and establish advance directives should not be delayed.  All is well if they have already done the planning (even if you have not been chosen as their agent). If not, they may be distressed by your intervention and there are strategies to comfort them if they are. One approach is to suggest that their lawyer keep possession of the advance directive until there is a need for access to them.   Explaining that the documents protect them from inappropriate guardianship and financial abuse by others may lead them to accept your intervention.

The AIP must receive formal written notice that the proceeding has commenced. The AIP will receive the petition and, in most cases, understand the claims you recite. You will be in the courtroom when the case is heard. The reality is that whether the court agrees with your position or not there may be personal consequences. But there may be no choice.

NOTIFYING THE AIP AND OTHERS

The due process clause of the U.S. Constitution requires that notice of the proceeding must be given to the AIP once the proceeding is commenced as provided by state law.  The form and contents of the notice and how it is delivered to the AIP varies by state, but it must give the AIP sufficient information about the demands of the petition and the supporting allegations about the AIP’s situation and the reasons the appointment of a guardian is being sought.  This requirement exists even if it appears clear that the AIP may not understand the notice and its contents.  conflict.

State law requires that close relatives (usually persons who would inherit from the AIP at death (the “distributes”) and all persons who are named as “interested parties” in the petition must also receive the appropriate notice of the proceeding. A parent’s frantic contact with other family members upon receiving the guardianship documentation is not uncommon.

We assume that if you are considering guardianship of a parent and have siblings or other family members or friends who care about the AIP, you will have been consulting with them about the AIP’s issues and possible solutions.  It will be wise to keep them informed and consider whether one or more of them might join in the petition or be available to provide other support, including being witnesses at the trial.

THE AIP’S RIGHT TO COUNSEL

As noted above, you must give formal written notice of the proceeding when the guardianship proceeding commences to the AIP.  In New York, the notice is part of the “Order to Show Cause” that has been signed by a guardianship judge that commences the proceeding

In the case of immediate need for intervention, a temporary guardian may be appointed. The AIP is entitled to object to the appointment of a guardian and may file written “answer” to the petition. While each state has a rule about how quickly the trial must be held, generally it will be 60 days after the petition is filed, unless there is some emergency. In theory in New York, the trial is to be held within 28 days of the commencement of the proceeding, but that usually does not happen.

After the trial the judge presiding over the case will make a written order which will include the decision whether to appoint a guardian, including who that will be and the powers that the guardian will be given. The judge can appoint a guardian to make personal needs decisions (guardian of the person), property management powers, (guardian of the property) or both.  In most cases, a surety bond must be obtained to protect against misfeasance of the guardian of the property and the appointed person must take a training course.  A person with any criminal record or previous bankruptcy cannot be appointed.

THE CARE PLAN

The petition must contain a care plan for the incapacitated person and powers to be given to the guardian that provides for an appropriate health care plan, place of residence, and appropriate and necessary powers that need to be given to the guardian to carry out the care plan. At this point, the court may need to hear from medical experts and social workers to assist in finalizing the plan and this may be permitted once a ruling on the capacity issues has been decided by the court.

ANNUAL REPORTS

As guardian, you will be obligated to file an annual report showing all financial information (assets, liabilities, income received, expenditures including taxes paid, etc., how the care plan is being implemented, a health report for the incapacitated person, and any issues that arose during the year. The guardian must also file an initial report within a statutory time period.

The reports must also be provided to a court appointed referee who reviews it and files a report with the court, raising objections if either financial or care issues the referee finds inappropriate.  Failure to comply with reporting requirements can result in a proceeding for removal.

The incapacitated person also retains the right to object to the actions of the guardian and to seek removal of the guardian. The incapacitated person can be given the right to receive a copy of all guardianship papers, including the initial report and the annual reports.

GUARDIANSHIP LAWS VARY BY STATE

Guardianship law is created by state legislatures. The applicable law is that of the state where the AIP is a resident. State laws vary on the question of how state residency is established, but the proceeding cannot be commenced in the state of residence of the petitioner if the AIP lives elsewhere, though there may be exceptions (such as your brother took mother to his home state against her will).  Procedure and practice also differ greatly.

The process can take substantial time and legal fees. Expenses are costly, particularly if the AIP objects to the appointment of a guardian or the person nominated to be the guardian, or if other family members disagree on the need for a guardian or the person nominated to be guardian.  Many states give preference to the incapacitated person’s wishes as to who should be appointed as guardian; whether that person is appropriate, or a spouse or adult children who know the aging parent and their needs best.

The court may also appoint a professional guardian in those states that allow such guardians.  New York does not have professional guardians, but a lawyer, social worker or other person nominated by the incapacitated person can be appointed if there is no family member or nominee available to serve. All guardians appointed by the court are entitled to reasonable compensation, although family members or friends typically will not charge for the service. Compensation for guardians must have court approval.

A guardian serves until:

  • The incapacitated person dies,
  • The court decides the incapacitated person has regained capacity,
  • The guardian dies or becomes unable to serve, or
  • The court finds it is in the incapacitated person’s best interest to remove  the guardian.

A DIFFICULT CHOICE

The person of your concern, whether a spouse, life partner, child or parent, may need assistance because of advanced age, a disability, or serious illness, often dementia.  But as noted, they may not have executed advance directives and appointed representatives to act for them in case of incapacity. Appointing a guardian may be the only option, who will have the authority to make decisions about medical care, finances, or other needs on the incapacitated person’s behalf.

Contact an elder law attorney at Pierro, Connor & Strauss, LLC to discuss the appropriateness of a guardianship proceeding for the person about whom you are concerned.  One of the experienced attorneys Pierro, Connor & Strauss, LLC, can guide you through the process, help you decide whether guardianship is appropriate, and represent you if it is the appropriate action to take.