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New York Guardianship proceedings can be found to be an appropriate remedy in varied situations. Typically, the Article 81 Guardianship is associated with an elderly person suffering from an illness such as dementia or Alzheimer’s disease or a person who has suffered a severe physical event such as a stroke or heart attack. These situations are a garden variety basis for the appointment of a Guardian for property management and personal needs.

New York Guardianship attorneys, however, are familiar with the many other situations in which a Guardian may be needed. For example, in many instances, younger individuals may be incapacitated due to mental or physical disabilities that are birth related. In these situations, a Guardian may be necessitated not only for personal needs but also to handle monetary awards or funds the person may be entitled to due to a settlement from a lawsuit. The Guardianship Court is often asked to allow the establishment of a Supplemental Needs Trust to hold these funds so that the incapacitated person does not lose the benefit of governmental programs such as Social Security Disability or Medicaid.

Many guardianship cases also involve issues relating to the housing of the person who is incapacitated. Such person may live in a rental apartment or even own a cooperative apartment. Due to the person’s incapacity, the rent or maintenance due on the apartment may go unpaid and subject the person to possible eviction or termination of their leasehold interest.

Other events that may result in eviction proceedings or lease terminations are where the tenant creates a nuisance by engaging in loud or abusive conduct or exhibits Collyers Syndrome which is the excessive hoarding and accumulation of items in the apartment. These activities create a climate where both the incapacitated individual and other tenants in the building are at risk.

When a person is exhibiting the above described behavior, the building management may commence eviction proceedings or, sometimes, contact Adult Protective Services of the New York City Human Resources Administration to intervene. APS will attempt to provide the tenant with assistance, if possible.

A Manhattan Guardianship lawyer, Queens Guardianship lawyer or Brooklyn Guardianship lawyer who represents a family member attempting to obtain appointment as a Guardian,
can ask the Guardianship Judge to issue a stay or injunction to stop the eviction proceedings of the incapacitated person until a Guardian has been appointed. Such relief is usually granted by the Court.

The New York Probate Lawyer Blog has discussed in previous posts that a Guardian will be appointed by the Court if the Court determines by “clear and convincing evidence” that a person is incapacitated. New York Mental Hygiene Law (“MHL”) section 81.02. When a Court is considering the case, it will review the ability of the person to manage activities of daily living such as “money management”, “grooming”, and “housing”. MHL section 81.03 (h). Therefore, when a person fails to pay rent or creates a nuisance or dangerous condition in an apartment, such activity is evidence of incapacity.

I have represented many clients who have petitioned to be Guardians in situations where their friends or relatives are on the verge of eviction or lease termination due to failure to pay rent or creating a nuisance condition. In these cases, quick action and Court filings are often needed to obtain a stay of the eviction and prevent the loss of the incapacitated person’s apartment. Once appointed, a Guardian is usually able to pay the back rent or correct the nuisance condition so that the apartment which is the incapacitated person’s home can be retained.

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The New York Probate of a Last Will can be relatively smooth depending upon many factors. Of course, everyone has heard stories of feuds over a decedent’s estate and Will Contests that are both lengthy and costly. However, for the most part, the probating of a Will is not controversial.

Essentially, the probate process is the validating of the Will by the Court so that the terms of a Will regarding the disposition of the estate are authorized by the Surrogate’s Court. The Executors or Trustees who may be named in the Will are issued Letters Testamentary or Letters of Trusteeship by the Court. These fiduciaries are then empowered to handle estate or trust affairs.

The Probate Proceeding requires the filing of a petition with the Court along with other papers such as affidavits from attesting witnesses and possibly Waives and Consents from other interested parties. Sometimes, the Court must issue a Citation to be served on interested parties who do not voluntarily consent to the probate of the Will. The Surrogate’s Court Citation is like a Summons and provides a Court date for the parties to appear in Court and advise the Court as to their intentions. The Citation is served on the parties either personally or sometimes by mail.

The New York Probate Lawyer Blog has provided many posts regarding various aspects of probate. The preparation of a clear and complete estate plan which includes a Last Will is the first and, maybe, the most important step in facilitating an easy probate proceeding. Problems often arise when a decedent’s Will has provisions that are unclear or ambiguous. The execution of a number of different Wills over a short period of time where beneficiary shares are drastically changed also leads to post-death disputes and Will Objections based upon lack of testamentary capacity and undue influence.

Of course, there is no guaranteed method of leaving a Last Will and avoiding a potential Will Contest or Estate Litigation. There are, however, some strategies that can lessen the likelihood of fighting. Many Wills contain an In Terrorem Clause or no-contest clause that provides that anyone who attempts to challenge the validity of the Will is to forfeit their inheritance if they are unsuccessful. Also, the creation of a Living Trust can avoid the probate process entirely although these trusts are subject to Court challenge.

The Estates, Powers and Trusts Law and Surrogate’s Court Procedure Act provide many provisions regarding the creation, execution and interpretation of Wills and the procedures to probate and challenge a testamentary document such as a Will.

Experienced New York Estate Lawyers are familiar with the laws regarding estate administration. It is essential that persons who are nominated as Executors in a Will or beneficiaries or other interested persons obtain advice as to the steps to follow in a probate matter and the likelihood that they may or may not be successful regarding their desired outcome.

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Estate litigation occurs on a daily basis in Manhattan, Brooklyn, Nassau and other New York Surrogate’s Courts in counties across the state. The variety of the issues that are the subject of dispute often appear to be endless and usually present rather interesting problems. New York estate lawyers confront many complex issues and provide assistance to their clients in attempting to resolve these matters that can disrupt and delay estate settlement.

Estate court cases occur throughout the United States and it is helpful to review a few current controversies since the situations presented can easily relate to a New York decedent.

In one recent incident a Missouri attorney has been accused of murdering her father in a very unusual manner. As reported in an article by Martha Neil posted on October 2, 2012 in the ABA, the attorney apparently shot her father, but after he survived being shot, the attorney used a forged health care proxy to have life saving treatment for him discontinued.

Under Section 2981 of the New York Public Health Law a person can appoint a health care agent by preparing a Health Care Proxy. The statute, along with companion statutory provisions, contains many specific provisions regarding the process to create the proxy. For example, it must be “signed and dated by the adult in the presence of two adult witnesses who shall also sign the proxy.” PHL sec 2981 2(a).

It should be recognized that a Health Care Proxy relates to health care decisions. In New York an individual can also appoint an agent to make financial or property decisions. However, to do so a different document called a Power of Attorney must be prepared and executed in accordance with the statutory rules beginning at New York General Obligations Law section 5-1501.

New York estate planning lawyers typically discuss with clients the benefits of having a Health Care Proxy and Power of Attorney as part of their estate and financial planning papers. As can be seen from the case of the Missouri attorney and her father, it is also important to select as an agent a person that can be trusted and will act in the principal’s best interest.

A different set of circumstances was recently reported regarding a father who sued his daughter when she questioned his handling of her trust. As reported by Barbara Ross and Bill Hutchinson in an article in the New York Daily News on October 23, 2012 a Manhattan attorney sued his daughter for libel after she filed a request with the Manhattan Surrogate’s Court to have him provide an accounting of her trust.

New York estate and Surrogate’s Court laws provide that all fiduciaries, whether they are Executors, Administrators or Trustees, are obligated to provide an accounting of their activities. The Court can require a fiduciary to account and a beneficiary can request that the fiduciary be compelled to account. Surrogate’s Court accounting proceedings can be very complicated since the fiduciary may have had many financial transactions over many years and the advice of estate attorneys and also accountants is generally very helpful.

I have represented many clients in connection with fiduciary accounting proceedings including individuals who are preparing and filing accounting papers and beneficiaries who are reviewing the accountings. When an interested party disapproves of the actions of the fiduciary, the common procedure is to file objections to the accounting with the Court and the interested party may fully investigate all financial transactions and present the objections to the Court at a hearing.

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New York Estate Planning Lawyers encounter many different issues that can have an effect on an estate plan and a decedent’s estate. Post death concerns are often resolved in proceedings in the Manhattan Surrogate’s Court, Queens Surrogate’s Court or the Surrogate’s Court in New York’s many other counties. It is astounding, even to Long Island Estate attorneys and other probate lawyers, as to the many peculiar problems faced by estate fiduciaries.

For example, in a recent case decided by Manhattan Surrogate Nora Anderson on October 19, 2012 and reported in the New York Law Journal on October 16, 2012 entitled Matter of Ray, the Court was asked to declare a potential heir as deceased due to the heir’s long absence. New York Estates Powers and Trusts Law (EPTL) Section 2-1.7 allows a Court to provide a presumption that a person is deceased after a three year absence. Based upon the demonstration of a diligent search and the potential heir’s long absence and other evidence, the Court ruled that the potential heir was presumed to have died and the sole surviving heir was then able to administer the decedent’s estate.

In another recent case decided by Manhattan Surrogate Kristen Booth Glenn on October 18, 2012 and reported in the New York Law Journal on October 26, 2012, entitled Accounting by Matseoane, the Court dismissed objections to an Administrator’s accounting that were filed by a creditor of the decedent. The problem is this proceeding was that the creditor’s alleged claim against the decedent’s estate had been discharged by the decedent during her lifetime in a Chapter 7 bankruptcy. Not only did the Court dismiss the claim, it found that the creditor and the creditor’s attorney acted improperly and were subject to Court sanctions.

As a New York Trust and Estates attorney, I am aware that having a properly planned estate can avoid many of the problems that arise during estate administration. The fundamental implementation of a Last Will may avoid issues regarding intestate succession and proof of kinship. However, it is not surprising that the lack of attention to proper planning can result in problems regarding estate settlement. However, even individuals with large estates and the monetary resources to obtain counseling regarding probate and succession issues often fail to properly plan their post death dispositions. A recent article appearing in Forbes by Erik Carter on October 17, 2012 entitled “What We Can Learn From Celebrity Estate planning Gone Wrong”, chronicles some of the mistakes made by the rich and famous. For example, the article reports about the late classic folk and rock star Sonny Bono who failed to prepare a Last Will but fathered an out-of-wedlock child who claimed a share of his estate. Even the late former Supreme Court Justice Warren Berger cost his estate hundreds of thousands of dollars due to poor planning.

Estate Administration and Estate Planning requires time and thought and the assistance of professionals such as attorneys, accountants and financial advisors. An individual who neglects to create a proper plan with consideration for post death issues runs the risk that their family and beneficiaries will suffer the consequence of unnecessary cost and delay in wrapping up post-death affairs.

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Many New York Estates and New York Guardianships contain assets in the form of real estate such as single or multi-family homes. Other possible assets can also include a condominium or cooperative apartment. These properties are a valuable, and many times the most valuable, asset owned by a decedent or an incapacitated person.

Problems often arise when the estate Executor or Administrator or Article 81 Guardian need to sell these assets to make a monetary distribution to beneficiaries or to pay expenses. Frequently, there are other persons who are living in these properties and remain there after the appointment of the fiduciary and they refuse to vacate the premises to allow the property to be marketed and sold. Persons who may be living in a house or apartment can range from children of the decedent or the incapacitated person to third party friends.

When a situation arises requiring the removal of a person from property as described above, the most common procedure is to file a Summary Eviction proceeding in the County where the property is located. This is the most common and expeditious method especially when dealing with non-relative occupants. For example, if the decedent had a Queens Probate or Brooklyn Probate and left a house in such County, the eviction proceeding would be filed in the Landlord-Tenant Part of the New York City Civil Court in such County.

Landlord-Tenant proceedings can be complicated and it is a good practice to obtain legal guidance from an attorney with experience in these matters. I have represented many individuals in Landlord-Tenant cases throughout New York. In an eviction case, there is usually an initial Notice sent to the occupant advising him or her to vacate by a certain date or Court proceedings will then be commenced. If the person fails to vacate as demanded in the Notice, a proceeding is filed in the Court to have the person evicted.

While eviction proceedings are “Summary” in nature, meaning that the process to have a Judge hear and determine a case is streamlined, the procedural aspects of these cases usually result in many adjournments and extensions. The ultimate consequence is that the Estate Administration or Settlement can be delayed for many months until the eviction process is completed.

In the Guardianship setting, a reverse scenario may occur. When a person becomes incapacitated they may be unable to pay the rent on the apartment where they live. Due to this non-payment of rent, the landlord may start an eviction proceeding against an incapacitated person who may be unable to defend himself or herself until a Guardian is appointed. In such situations, when a petition for Guardianship is initially filed with the Court, the Court may issue an Order Staying or putting on hold the eviction case until a Guardian is appointed who can either pay rent or otherwise defend the incapacitated person’s interest. Mental Hygiene Law section 81.23 provides that the Guardianship Court has the power to grant such a provisional remedy. There have been many instances when I have represented persons to be appointed as an Article 81 Guardian when I have obtained this type of relief and prevented the incapacitated person from being evicted from his or her home.

The ownership of real estate and tenancy rights relating to Estate and Guardianship proceedings can be very complicated and involve very valuable interests. As a New York Guardianship and New York Estate and Trust Lawyer, I have helped my clients recognize and deal with these issues.

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There have been numerous posts in the New York Probate Lawyer Blog discussing many aspects of the importance of good estate planning. First and foremost, preparing and signing a Last Will allows a person to provide specific direction as to the disposition of property upon death. Absent the execution of a valid Will, a person is deemed to have died intestate and all estate property that does not pass by operation of law (i.e. joint assets) is distributed to the decedent’s next of kin in accordance with State laws. Thus, long lost relatives with whom the decedent had little or no lifetime contact may become estate beneficiaries. For example, the Las Vegas Sun recently reported in a story by Cy Ryan on September 16, 2012 about a recluse who died leaving $7 million dollars worth of gold bars and coins stored in boxes in his house. It now appears that since the decedent did not have a Will, a first cousin who had not even talked to the decedent for a year, may inherit the estate.

Not only does preparing a Will allow a person to specifically name beneficiaries, a complete estate plan that includes a pre-nuptial agreement and a trust can fine tune the manner by which the decedent’s property is disposed of. A good example of such planning was seen recently with the death of actor, Dennis Hopper. As reported at on September 17, 2012, Mr. Hopper had entered into a pre-nuptial agreement that prevented his estranged wife from receiving any benefits under his Will. As discussed in my prior Blog posts, ordinarily in New York a spouse cannot be disinherited and New York Estates, Powers and Trusts Law section 5-1.1-A provides that a spouse can elect to receive a share of an estate. However, a valid pre-nuptial agreement can provide that a spouse waives the right to receive the statutory share and instead elect to receive only the amounts provided for in the agreement.

The TMZ article also reports that Mr. Hopper left his 9 year old daughter $2.25 million in a trust and that his wife had no control over the trust. It is very common for parents to leave their minor children assets in a testamentary trust, which is a trust created inside of their Will. The trustees that are also named in the Will can be anyone the testator selects, whether a relative, a friend or even a bank or trust company. The trustee does not need to be the child’s other parent. The surviving parent or legal guardian of the child has no authority to control the named trustee.

New York Estate Planning attorneys work closely with their clients to understand their needs and intentions and to develop an estate plan that can reflect their wishes. Mr. Hopper’s advisors apparently were successful in creating a plan whereby his estranged wife was excluded from obtaining or controlling any part of his estate or the manner in which it would be administered for the benefit of his young daughter.

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A New York Executor and Administrator has an obligation to collect estate assets, pay bills and expenses and then distribute the net estate to the estate beneficiaries. Estate settlement in Manhattan or Brooklyn or Queens or other New York Counties is fundamentally the same.

As part of the settlement process, the estate fiduciary will prepare an accounting of his or her activities as an Executor or Administrator or Trustee. The form of the accounting is provided in official forms for the Surrogate’s Court. The accounting reports specifically all of the assets and income collected, all of the expenses and claims that were paid and the amount of funds that ultimately remain on hand to be distributed to the beneficiaries. Such distribution is made in accordance with the terms of the probated Will or as provided by the laws of intestacy.

Prior to distribution the accounting is given to the parties entitled to distribution so they can review and approve it. A fiduciary generally will not distribute shares of an estate without an approval of the account by all necessary parties and their signed Release and acknowledgement that they approve of the job done by the fiduciary.

In many cases, the beneficiaries either object to or have questions regarding the transactions of the fiduciary. When this occurs, there are provisions in the Surrogate’s Court Procedure Act (“SCPA”) and other statutes that provide a means by which the beneficiaries can investigate any questions they have about the administration of an estate or a trust. Specifically SCPA 2211 entitled, “voluntary account; proceedings thereupon” allows a party to take oral testimony of a fiduciary to examine all of the fiduciary papers relating to the accounting. Such papers may include bank statements, deeds, tax returns, financial records, bills and receipts. Following the completion of the SCPA 2211 examination a decision can then be made as to whether to file formal objections to the accounting.

Depending upon the size of an estate, an accounting may be very lengthy and report hundreds of different financial transactions. The review and advice of experienced accountants and New York Estate Lawyers should be obtained to determine whether there exists a valid basis to object to the actions of an executor or administrator. In some cases discovery of information from third party witnesses may also be needed such as banks and other individuals who have knowledge regarding the transactions.

Generally, the New York Surrogate’s Courts encourage interested parties to resolve their disputes, including accounting contests, without extensive Court proceedings or a trial. An estate accounting is always helpful to the recipients of estate bequests or shares. It provides a clear and concise review of all of the estate receipts and expenditures so that a party can understand exactly why he or she is receiving a certain sum of money.

Since accountings are an essential part of the estate process, I always advise clients who are Executors, Administrators and Trustees to maintain clear and complete records of all of their transactions and keep copies of all papers that may be needed to provide support and back-up for the transactions.

It should also be noted that Article 81 Guardians are also required to provide annual accountings. Mental Hygiene Law Section 81.31. Thus, all fiduciaries should maintain complete records so that they can respond to any questions regarding any item that appears in their accounting.

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Proceedings in the New York Surrogate’s Court, like most Court matters, require that all of the interested parties be given proper notice of the Court action.

In addition to the fundamental fairness that results from proper notice, the Court’s ultimate rulings and Orders generally can have no effect over persons who were not made parties to the proceeding.

The Surrogate’s Court can hear many different types of cases. The most common of these matters is the Probate of a Will or the Intestate Administration of a decedent’s estate. In Probate and Administration proceedings it is mandated that the Court be advised as to identity and location of the decedent’s distributees or next of kin. This information is provided to the Court in the Probate Petition or Petition for Letters of Administration. In most instances distributees are easy to determine since the decedent is survived by a spouse and/or children. However, there are many situations where the closest living relative may be a distant cousin and members of this class of relatives may have had no contact with the decedent for years or decades.

Additionally, locating cousins requires finding relatives that are descendents of the decedent’s grandparents on both the maternal and paternal sides of the family. It is common that when distributees are distant cousins the estate will have to be administered by a public official called a Public Administrator. When the Public Administrator completes the estate administration or estate settlement, an Accounting Proceeding is filed with the Court. It is at this point that the persons claiming to be distributees, such as the cousins, must prove their status in a Kinship Hearing.

When a client confers with me about an estate plan or preparing a Last Will, one of the important items of information I ask for is a family tree or kinship data. Based upon the information provided, a person’s estate plan can be structured by the use of a Living Trust or other plan to avoid post-death complications where kinship data is missing or hard to obtain. It is always a benefit to confer with a qualified New York Estate and Trust lawyer to discuss issues regarding beneficiary designations and planning strategies.

The final estate administration and intentions of a person can be disrupted where Court proceedings are complicated or delayed because all of the parties that need to be notified cannot be determined or located.

Determining the identity of a person’s next of kin can sometimes even involve the use of genetic or DNA testing. A recent article in Arts Beat on September 25, 2012 by Dave Itzkoff reported that a judge had recently ordered DNA testing for a man who claimed to be the brother of Sherman Hemsley, who had starred in the “Jefferson’s” television sitcom.

DNA testing is also authorized under Estates, Powers and Trusts Law Section 4-1.2 where a person claims to be the heir of a father who was not married to his mother. Needless to say, the determination of a person’s next of kin and the protection of the rights of estate beneficiaries can be very complex and consultation with experienced estate attorneys and even a genealogist is highly recommended.

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As 2012 is coming to an end, so are the many provisions of the tax laws that are set to expire on December 31, 2012. Among the laws that will change in 2013 is the Federal Estate Tax. At present, a New York Estate Attorney is aware that the federal estate tax exclusion is $5,000,000. When the estate tax laws change in a few months, only $1,000,000 will be protected from taxation.

The impending dramatic change in federal estate tax protection has created uncertainty and confusion for individuals and estate planners. This is especially so since neither Congress or the President have shown any indication that a definitive new law is being seriously considered.

For example, a Manhattan Estate Lawyer or Brooklyn Trust and Estates Attorney can prepare a Last Will for a client with precise provisions regarding the disposition of assets such as real estate, bank accounts, brokerage accounts and retirement funds. The Will can be probated in the Surrogate’s Court according to set procedures and requirements. However, the provisions in the Last Will dealing with estate tax planning must be flexible enough to accommodate the uncertainty in the tax laws that are going to change but in an unknown manner.

The variations in recent years in estate taxes due to the changing tax code and the failure of the government to provide long term certainty has resulted in unwanted and unexpected estate settlement and estate administration problems. For example a recent article in Business Financial News by Amy Feldman on July 31, 2012 recounted how a tax savings clause in a Will resulted in litigation to prevent an apparent aberration in the decedent’s estate plan. Essentially, a formula tax savings clause that was intended when drafted in 2008 to provide a sum of money to the decedent’s children of only about $2,000,000 would have given the children all of their mother’s $100 million dollar estate in 2010 when the estate tax had been eliminated. The problem was that the decedent’s husband would not have received any portion of the estate. When the Will was originally written it was not expected that there would be no estate tax in 2010 resulting in an unlimited bequest to the children.

The New York State estate tax law currently provides for a $1,000,000 exclusion. Because of the uncertainty surrounding the Federal Estate tax exclusion during the past years and in the coming months, questions continue to be raised regarding the need for the tax. An article appearing in The Daily Caller on September 4, 2012 discussed a report by the congressional Joint Economic Committee that the cost to enforce the estate tax is greater than the benefits it produces.

As a New York Trusts and Estates Lawyer, I am involved with potential estate tax issues with regard to Will preparation, estate planning and probate and estate administration. The initial concern is whether or not a person’s estate is subject to possible taxation based upon its value. If so, other issues such as the use of deductions, credits and gifts must be considered to minimize the impact of the tax. These considerations can be quite complex and require the cooperative efforts of the client and his or her tax advisors.

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New York Guardianship Lawyers are often asked by clients as to the type of Guardianship that is needed concerning an alleged incapacitated person (“AIP”). The New York Probate Lawyer Blog has discussed many instances where the Court has appointed a guardian for both the person and property of the AIP. In fact, in a Manhattan Guardianship, Queens Guardianship, Brooklyn Guardianship or any other county, the Court typically appoints the same person as both property management and personal needs guardian. New York Mental Hygiene Law (MHL) Section 81.22 concerns personal needs powers and Section 81.21 concerns property management.

While most Guardianship proceedings are initiated by a petition filed by a family member such as a spouse or child, many times the guardianship case is started by a hospital or nursing home. Sometimes, the local social services department starts the case after it receives information from Adult Protective Services that a person may be at risk.

A nursing home or hospital may file a Guardianship petition with the Court because a family member fails or refuses to do so and the institution needs to be paid. Payment may require a Guardian to either access the AIP’s assets or make an application for Medicaid.

The situation described above presented some interesting issues in a Long Island Guardianship case recently. In Matter of Restaino, decided by Justice Arthur M. Diamond (Supreme Court, Nassau County), on August 29, 2012 and reported in the New York Law Journal on September 7, 2012, an extended care facility filed a Nassau County Guardianship case seeking to be appointed only as property management special guardian for property so it could apply for Medicaid for the AIP to pay for the AIP’s care. It was the facilities’ view that it did not need to ask the Court for the appointment of a personal needs Guardian since the Family Healthcare Decisions Act would provide a mechanism for the AIP’s son or the facility to make health care decisions for the AIP.

The FHCDA came into existence in 2010 and provides a priority list of persons who would have authority to make health care decisions for incapacitated patients.

After reviewing the FHCDA the Court determined that the appointment of a personal needs Guardian was necessary since the act did not provide the extensive authority for the decision maker and protection for the AIP that was given to a personal needs Guardian. The Court ultimately appointed the extended care facility as special Guardian of the property and the AIP’s son as Guardian of the person.

As a Guardianship attorney, I work closely with my clients who are family members or friends of an AIP to determine the best course for having the Court appoint a Guardian. While sometimes there is a contested Guardianship, most often, families and friends pursue Guardianship so that the AIP’s personal and property affairs can be kept in order and decisions can be made in the best interest of the person who is incapacitated.

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