As my friends and I have gotten older, a usual topic of conversation is how best to care for our parents as they advance into their senior years. Many times these discussions involve expressions of fear, anxiety, sadness and a sense of overwhelming pressure to ensure that our parents are well protected. Should dad continue to drive? Is mom alright living alone? Are mom and dad taking their medications? In a strange twist of fate, mixed with reality, our parents who have raised and protected us our entire lives are now in need of our help.
As difficult as these issues are to face, the stress associated with protecting our elderly parents can be multiplied without the proper planning. Planning includes drafting advance directives and possibly the use of Article 81 Guardianships to ensure that you have the tools to sufficiently provide for your parent’s future, as well as they provided for you in the past.
The National Alliance for Caregiving published a 2015 study reporting that more than 43 million people in the United States provide unpaid caregiving services to another adult, many of which are elderly parents. These numbers are not surprising as the expense of nursing home care is staggering, costing easily $15,000 per month in areas like Westchester County.
In order to care for elderly parents, it is important that the caretaker child have legal authority to both make medical and financial decisions for the parent. This legal authority can be obtained in two ways: advance directives signed by the parents, or a court order granting guardianship of the parent to the caregiver child.
Advance directives include a Health Care Proxy and Power of Attorney usually with broadened gift-giving authority.
The Health Care Proxy can be completed by the parent designating a Health Care Agent to make their medical decisions when they are no longer able to do so. This document may be supplemented by a Living Will, which provides instructions to the Health Care Agent as to how future medical decisions are to be made.
In contrast, the Power of Attorney allows the parent to designate an Agent to make all other non-medical financial decisions. While these documents are rather simple to complete, many people find themselves in a situation where their parents have not completed these documents, are now incapacitated, without the ability to do so; leaving no individual legally authorized to make medical and financial decisions for the parent. In these situations, the child seeking decision-making authority over their parent must turn to the Article 81 Guardianship process.
Article 81 Guardianship
Under Article 81 of the Mental Hygiene Law (MHL), process was created to allow a guardian to be appointed for a person who has been determined to be incapacitated, meaning they require the assistance of another for their personal needs (including medical) and/or property needs (including financial).
If the court determines the person to be in need of a guardian, after a finding of incapacity, the court may appoint either a person or an entity such as a non-profit organization, as the guardian of the individual. In the case of an adult child seeking appointment as a guardian of an elderly parent, where there are no other parents living or both parents are incapacitated, the presumption will be that the adult child is the best person to serve in that role. However, if there are multiple children all seeking appointment, the court will be required to determine who is best suited to fulfill the duties of guardian. The MHL was recently amended so that a guardian may be appointed with less stigma to your parent.
Steps to Take
While the initial process of having a guardian appointed is usually no longer than 45 days, there are many steps that must be followed which are required by the MHL. First, a Petition must be filed with the Supreme Court in the county where the parent resides, which must be completed by the assigned judge and served on all interested parties to afford each the right to be heard before the court. The judge will usually assign an attorney to represent the parent and possibly assign a Court Evaluator to conduct an investigation on behalf of the court and to then submit a Report to the Court, outlining the parent’s background, finances, medical condition and need for a guardian. The Court Evaluator’s Report is of crucial importance as it will include a recommendation as to who is best suited to serve as guardian if the report suggests a guardian be appointed. The initial process will end at the hearing where the court will hear testimony from witnesses and review evidence to determine if the parent is incapacitated and if so, who will serve as guardian. At the close of the hearing a guardian will be appointed who thereafter will be required to file annual reports with the court to confirm that they are caring for the needs of the incapacitated person.
Although acting as a caregiver to a parent may at times appear overwhelming, having knowledge about guardianship provides another option that may prove indispensable to families in need.
James L. Hyer, Esq. is a partner at the law firm Bashian & Farber, LLP, located in White Plains, N.Y. Mr. Hyer is an attorney admitted to practice in New York State, the incoming Vice President of the Westchester County Bar Association (WCBA) and a Member of the House of Delegates of the New York State Bar Association. He has received recognitions in the legal community including New Lawyers Leadership Award from the WCBA and Leading Attorney Under 40 from Pace Law School.