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Providing Guardianship For Your Loved Ones

 

There may come a time where you will face caring for a loved one who cannot care for himself or herself. That loved one may be seriously ill and confined to a hospital bed, or may be mentally incapacitated and may need chronic care at home or in a skilled nursing home.

 

Because your loved one has such physical or mental challenges, he or she can no longer make the proper personal health care, financial or property decisions. In such cases, often your best next step is obtaining a guardianship for that person, especially if he or she does not have an appropriate power of attorney (POA) or health care proxy in place prior to incapacity. The attorneys at Castiglia-Rubinstein and Associates can help you and your family avoid a guardianship with proper estate planning. If your loved one is already incapacitated, our estate planning and elder law attorneys can help you and your family with a guardianship proceeding for an incapacitated loved one, ensuring that precious family member is well-protected. Like wills and trusts, guardianships are also legal documents that can enable you to secure your wishes, even after you are gone. The legal requirements of each state can vary, so it’s essential that your guardianship is drafted and executed by an experienced guardianship attorney. Our attorneys are not only trained in handling simple estate guardianship matters, we take care of complex estate litigation and guardianship litigation in the event of litigation with a guardianship proceeding in Nassau County, Suffolk County, Queens County, Bronx, Westchester, Richmond County, Manhattan and Brooklyn Kings County New York.

Trust vs WillsRemoval of a Trustee * Guardianship * Probate * Beneficiary Rights
In Home Care * Supplemental Needs Trusts  * Fraudulent Transfers * Guardianship Litigation
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts

If your loved one can no longer take care of himself or herself, protect him or her with a guardianship.

Call: 1-800-960-1529.

We Can Help You Establish Guardianship.
What Is An ‘Article 81’ Proceeding?

To establish guardianship, you go through a process known as an “Article 81” proceeding. We can represent your interests in this proceeding, whether someone is contesting the guardianship or not.
The guardian of your loved can be almost any person that you wish; he or she could be another trusted family member or a disinterested but trustworthy third party.

Guardians and Conservators

The traditional distinction between guardians and conservators is as follows:

  • Guardians – A guardianship is a legal right given to a person to be responsible for the food, health care, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for himself or herself.
  • Conservators – A conservatorship is a legal right given to a person to be responsible for the assets and finances of a person deemed fully or partially incapable of providing these necessities for himself or herself.
When Is A Guardian Required for an Adult?

It may be necessary to petition a court to appoint a legal guardian for persons:

  • Who have a physical or mental problem that prevents them from taking care of their own basic needs;
  • Who as a result are in danger of substantial harm; and
  • Who have no person already legally authorized to assume responsibility for them.
How is a Guardian Appointed?

The precise procedure will vary to some degree from jurisdiction to jurisdiction. The typical steps are as follows:

What Are a Guardian’s Duties?

The guardian makes decisions about how the person lives, including their residence, health care, food, and social activity. The guardian is supposed to consider the wishes of the incapacitated person, as well as their previously established valued, when making these living decisions. The guardian is intended to monitor the legally incapacitated person, to make sure that the person lives in the most appropriate, least restrictive environment possible, with appropriate food, clothing, social opportunities, and medical care.
A guardian may be required to post a bond, unless the requirement is waived by the court. In most jurisdictions where bond is required, waivers are routine.

The Purpose of Court Supervision

The court supervises the guardian’s choices on behalf of the ward. After the initial appointment of a guardian, an initial review is usually scheduled, followed by annual reports by the guardian to the court. The purpose of this supervision is to ensure that the legally incapacitated person is in fact benefiting from the most appropriate, least restrictive living environment possible, with appropriate food, clothing, social opportunities, and medical care.

How Can a Guardianship Be Ended?

A guardianship can be terminated by the court which created it. This ordinarily happens if the legally incapacitated person recovers from the incapacity that necessitated the guardianship. A particular guardian’s role may be terminated by the court or by resignation, in which case the court will ordinarily appoint a successor guardian to take over management of the legally incapacitated person’s affairs. A guardianship also ends upon the death of the legally incapacitated person.

What About Co-Guardians?

Sometimes, relatives of a legally incapacitated person will request that they be made co-guardians for that person. If this is done, depending upon the laws of the jurisdiction and the terms of the appointment, it may be necessary for both co-guardians to approve any decision made on behalf of the legally incapacitated person. This can create needless delay in the administration of emergency care, and can create difficulty in establishing authority for even minor decisions. Thus, it is usually advisable not to have co-guardians, but instead to name a single guardian, perhaps with the other relative named as a successor guardian.

Avoiding Guardianship

It is possible to avoid the necessity of a guardianship through proper estate planning. A good estate plan will include a medical power of attorney which will enable a trusted individual to make health care decisions for you in the event of incapacity, and a general durable power of attorney to permit a trusted individual to manage your personal affairs. To a considerable extent, those documents can specify how you wish to live, and how you wish to be treated, in the event of disability whereas a court or guardian may make decisions with which you would disagree. In most cases, when these documents have been executed in accord with the laws of your state, it will not be necessary for your loved ones to seek the appointment of a guardian or conservator should the event arise. We understand how difficult the incapacity of a loved one can be for all of your family members. The law firm of Castiglia-Rubinstein and associates is there for you and your family to help navigate a clear path through the guardianship proceeding during this tumultuous and emotionally taxing and difficult time.

Get Help With Your Estate Plan Now

Be prepared if a loved is going into a nursing home or already resides in a nursing home.
You should know you have certain legal rights and must be very selective of the Lawyer or Law Firm that you chose to represent you.

Have an Attorney council you on the Right Decision for You.

Trust vs WillsRemoval of a Trustee * Guardianship * Probate * Beneficiary Rights
In Home Care * Supplemental Needs Trusts  * Fraudulent Transfers * Guardianship Litigation
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts

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