ELDER LAW

Guardianship Proceedings are sometimes a necessary and important measure to ensure an incapacitated person is properly cared for.
Planning for potential incapacity is very prudent and is something that all individuals should consider regardless of ones current condition.
Such steps include having a Living Will, having health care proxies, as well considering executing a Power of Attorney.

GUARDIANSHIP PROCEEDINGS
Guardianship is a legal arrangement where a court gives a person the legal right to make decisions for another person who is unable to make decisions for themselves.

A Guardianship Proceeding is initiated by the filing of an Order to Show Cause with a Petition to Appoint a Guardian
Once the petition is filed with the court, the court normally appoints what is called a court evaluator. It is the job of the court evaluator to conduct an investigation and provide the court with a report with regard to the facts and circumstances of the case.

Various Duties of The Guardian
A Guardians Duties can vary based on the circumstance. The court will try to limit the Powers of the Guardian to what is essentially needed.
A Guardian can be given authority to manage the incapacitated individuals (IAs) financial affairs, to prevent the IA from self harm, and to prevent the IA from being abused by other parties. The powers can be as broad as the court feels is necessary. The court will also look to whether there are other less intrusive means of accomplishing the same objectives. Such as whether there is a Power of Attorney set up to manage the IAs financial affairs, whether there are health care proxies or a living will that can give directives.

LIVING WILL
A living will is a written statement of an individual’s wishes regarding medical treatment. The statement is to be followed if the individual is unable to provide instructions at the time medical decisions need to be made.

HEALTH CARE PROXY
Under New York law, an individual may appoint someone she trusts, for example, a family member or close friend, to decide about medical treatment if she loses the ability to decide for herself. She can do this by using a health care proxy in which a health care agent is appointed to make sure that health care providers follow her wishes. The agent can also decide how her wishes apply as her medical condition changes.
A Health Care Proxy is someone you should literally trust with with your life. They should also be sophisticated enough to follow up with the best course of treatment for the individual in the event they become incapacitated. It is prudent to use both a Living Will and execute it in conjunction with a health care proxy as the living will gives some measure of guidance to the health care proxy as to the individuals wishes.

POWER OF ATTORNEY
It is prudent to execute a Power of Attorney to handle ones affairs in the event of incapacitation. It is critical that you choose someone that you have the highest level of trust. It is also advisable to execute more than one Power of Attorney in the event that one individual is unwilling or unable to carry out the necessary duties. Granting broad Powers under a Power of Attorney can also be a way to protect oneself from being the subject of the potentially traumatic process of being subject to a guardianship Proceeding by essentially allowing the individual the Power to decide who is to manage their affairs upon Incapacitation.

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