When a person reaches a point when they can no longer manage their financial or personal affairs, a loved one may have to petition the courts to appoint a guardian. But guardianship is often a last ditch effort, and with planning, it can be avoided.
A guardianship proceeding in New York takes place in the Surrogate’s Court, where a person or institution may be appointed to handle the care of an adult who is physically or mentally unable to handle their personal needs, their financial affairs, or both. The person or institution appointed by the court is known as the “guardian,” while the person who needs the assistance is called the “protected person” or the “conservatee.”
There are two levels of guardianship; one to handle the personal care, known as a “guardian of the person,” and one level to handle financial affairs, called a “guardian of the property.” One person may be appointed to handle both of these tasks. The responsibilities of a guardian center around the goal of allowing the protected person to maintain the highest standards of living possible for their specific situation.
A guardianship is one of the least desirable choices in helping the elderly manage their personal or financial affairs, and it is avoidable by working with an estate planning attorney to establish an incapacitation plan for situations that may occur in later years. There are several estate planning tools that can be used instead of guardianship, such as a durable power of attorney or a living trust.
Incapacitation planning addresses issues that may come up later in life, and working with an estate planning attorney ensures that the tools used will best fit an individual’s and family’s needs and goals.