Guardianship – What You Need to Know
By Bernard A. Krooks, Certified Elder Law Attorney
It seems like almost every day clients are asking us questions about guardianship, including what is it? Why do I need it? How can I avoid it?
Keep in mind I am talking about New York law and the answers may be different in another state. While there is a movement to make guardianship laws more uniform, there remain significant differences among the states.
What is guardianship of the estate?
We don’t use those terms in New York. Other states might have guardianship of the estate. In New York, we call it guardianship of the property. We also have guardianship of the person. The difference is that a property management guardian manages the property of the person who is incapacitated, and a personal needs guardian manages the personal health care decisions of the incapacitated person. Sometimes, the same person serves in both roles and other times there are different people serving in each role.
Can my Mom name me as her guardian?
Maybe. Your mom (or anyone else) could certainly nominate you to be their guardian. But only a court can appoint you as guardian. Once the court has appointed you in that role, you will need to report (annually, in most cases) to the court and follow the court’s direction.
Of course, if your mother has capacity, she could sign a power of attorney or health care proxy naming you to that role. In most cases that would avoid any need for a guardianship. But it does require that Mom sign the document while she still has capacity. Thus, it’s not very helpful if your family member has lost mental capacity.
How much will it cost to get guardianship?
That’s a tough question since in most cases this is outside our control since we are dealing with an overloaded court system and sometimes guardianships can be adversarial, which always increases the cost. Nevertheless, even in an uncontested case, the fees can be several thousand dollars and more. If someone is contesting the need for a guardianship or who the guardian should be, the fees will likely be substantially higher. Also, the court will appoint a court evaluator and/or an attorney for the alleged incapacitated person, which will add additional cost to the proceeding.
If I am guardian, what powers do I have?
A guardian’s powers are generally pretty broad; but it’s not absolute. For example; you typically need court approval to move the incapacitated person into a nursing home or to perform non-routine medical procedures.
But here is an important point: as guardian, you are not supposed to substitute your own judgment for that of the other person. If, for example, they had long maintained that they would not want to be kept alive on a ventilator, you are expected to follow their longstanding wishes, not your own view of the “right” answer. Similarly, if they had always insisted on getting full treatment, you should not use your guardianship to remove life-sustaining treatment.
Am I personally responsible for health care costs?
No. Unless, that is, you have actually signed on to cover those costs, which the long-term care facility you check your relative into may be happy to make it easy for you to agree to. The rules are different for spouses; you may be liable for their care costs because it is a marital debt. The fact of guardianship does not change that, though — so getting a guardianship does not make you more liable. The good news, however, is that there are many planning techniques available which could help cover the cost of that care without bankrupting your family.
Does a guardian get paid?
Yes. You should keep good records of what you do on behalf of the incapacitated person. And, of course, the person over whom you secure guardianship will need to have funds to pay your fees. But you do not have to work for free. However, all guardianship fees payable out of the guardianship estate are subject to court approval.
For additional questions, make an appointment for a consultation about guardianship.
Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). (914-684-2100) www.elderlawnewyork.com.