When an elderly person is unable to manage his or her finances, daily necessities, and medical treatment, but refuses to execute a power of attorney or health care proxy to appoint an agent to assist him or her, a guardianship proceeding may be necessary. However, in regard to health decisions where there is no health care proxy, the New York State Family Healthcare Decisions Act provides a list of individuals who may act as a decision maker on behalf of a person who is institutionalized in a nursing facility, rehabilitation facility, or hospital. In order of priority, substitute decision makers are a:
- Court-appointed guardian;
- Spouse or partner;
- Adult child;
- Parent;
- Sibling; and
- Friend.
While this is a default method that may be utilized, oftentimes problems may arise if these parties disagree about what the patient would want. For this reason, it is important for a person to designate an agent in a health care proxy so that he or she knows that the person selected to act on his or her behalf is aware of their wishes.
As stated before, this default method applies only to individuals in an institutionalized setting where no health care proxy exists. This means that if medical decisions must be made in a doctor’s office or at home, a guardianship proceeding may be necessary. Furthermore, a court-appointed guardian might also be necessary and beneficial to clarify who has the exclusive authority to make decisions on an elderly person’s behalf when he or she lacks the capacity to do so. In the event that a guardianship proceeding must be commenced, a court evaluator will conduct an investigation to determine whether or not the elderly person has the capacity to make decisions for themselves. If the person lacks capacity, a judge will provide certain powers to the guardian. An appointed guardian may have the power to:
- Make healthcare decisions;
- Manage assets;
- Manage finances; and
- Complete applications and fill out documents.
It may be difficult for a person to relinquish control of their daily decision-making authority even though their capacity to act on their own behalf is diminishing. For this reason, it is important to meet with an attorney who can explain the benefits of executing advance directives and the downside of failing to have these documents in place. Establishing a comprehensive estate plan that includes the necessary advanced directives will help decrease the risk of future complications.
Goldberg Sager & Associates is experienced in handling all aspects of estate planning and elder law and is dedicated to providing compassionate and cost-effective solutions to its clients. Contact the Brooklyn estate planning attorneys at Goldberg Sager & Associates at 718-645-6677.
