You may know that “legal guardian” is a phrase can be applied to a parent for their child, but it can also be applied towards an elderly or disabled person. Guardianship is a court appointment of a guardian to manage the personal and/or financial affairs of a person who cannot manage for him or herself because of incapacity. Article 81 of the New York State Mental Hygiene Law authorizes the appointment of a guardian to an incapacitated individual in order to protect the ward’s best interest. The orders given to the guardian by the court are specifically tailored to the needs and abilities of the ward. Financial and medical choices are most often where the guardian is given control.
Paying Bills & Dealing with Finances
Guardianship may be necessary for a family member to ensure that the incapacitated individual’s bills, rent and other important expenses are being handled. For instance, a court may grant guardianship rights to a child of an elderly person in order to have them keep track of their finances, and ensure that bills are paid on time. A guardian can also be given the authority to deal with Medicaid and tax planning for the individual, and will have to oversee the finances.
Guardianship is important in protecting the well-being of an individual from neglecting their own needs. Often, preventing self-neglect includes cleaning of their home, ensuring proper grooming, obtaining food and proper nutrition, and more. This may include matters of health and safety, such as choosing treatments or residential care facilities.
Protecting Against Financial Abuse
It is unfortunate that some people would try to take advantage of an incapacitated person by exploiting them financially. Establishing guardianship s can allow a family to secure the finances of the incapacitated individual, and help protect their assets. Being appointed as a guardian allows you to ensure that the finances are secured and kept out of the hands of those who would exploit your loved one. During guardianship proceedings, the court can freeze accounts to prevent further exploitation or theft during while the case is pending. A guardian can also commence court proceedings on behalf of the incapacitated individual to recover stolen assets or funds.
Defending Against Physical Abuse
When an elderly or disabled person is being physically abused, it can be difficult for them to speak out against the aggressor. In many cases, the defenseless individual does not try to protect themselves out of fear of further harm. As a guardian, you would have the authority to take legal action against the aggressor. This can include suing for injuries, filing for a restraining order, an order of protection, and more.
Tax and Medicaid Planning
A guardian may also be put in charge of the incapacitated individual’s Medicaid and tax planning. You should work with a CPA to ensure that their tax filings are properly prepared. Medicaid can help provide proper care for your loved one. Medicaid planning helps avoid the loss of your loved one’s assets to the costs of long term care. Your elder law attorney can help you establish a solid Medicaid plan.
For more than 40 years, our firm has been assisting people like you with long term care and estate planning needs. We bring you the knowledge and resources to protect you and your family. Armstrong & Lamberti, PLLC does not provide tax, legal, or accounting advice by articles. This material has been prepared for informational purposes only and is not intended to provide, and should not be relied on for, tax, legal or accounting advice. Call 718.477.7700 or contact us online to schedule a free initial consultation with an estate planning attorney at Armstrong & Lamberti, PLLC. We proudly serve Staten Island, Brooklyn and the other boroughs of New York City.