As the year 2015 comes to an end, it is a good time to revisit some basic planning goals. Much has been written about Advanced Planning. The New York Probate Lawyer Blog has discussed this topic in earlier posts. Essentially, Advanced Planning involves a number of considerations. Concerns regarding lifetime disabilities and incapacity may be addressed by preparing documents such as a Durable Power of Attorney, a Living Will, a Health Care Proxy and a Living Trust.
These documents serve a number of purposes. For example, a Durable Power of Attorney will name the individuals who have the authority to make property management decisions for a person. The power of attorney will remain effective even if the principal becomes incapacitated. A Health Care Proxy allows a person to name the individual who is to make health care decisions in the event the creator of the proxy does not have the capacity to do so.
By creating advanced directive documents, a person is able to designate the agents he wishes to make decisions if he is not able to do so himself. Presumably, the agent will have information regarding the creator’s desires and will exercise his authority in furtherance of the creator’s intentions. Additionally, the creator may specifically set forth in these documents directions and choices that he would want the agent to abide by.
One goal when entering into advanced directives is to avoid the necessity of a Court mandated Guardianship. In New York, Guardianship proceedings for incapacitated persons are controlled by Article 81 of the Mental Hygiene Law (“MHL”). However, when a person has in place directives such as a Durable Power of Attorney and Health Care Proxy, the Court may not find it necessary to appoint a Guardian. The Guardianship Courts generally prefer to allow a person to provide for his own alternative care system rather than a Court directed scheme. Of course, if the Guardianship Court finds that an agent under a power of attorney or health care proxy is not exercising his powers in an appropriate manner, the Court can revoke the power and appoint a Guardian. Article 81 provides for the appointment of a property management Guardian and a Guardian for personal needs.
Although a person may put into place advance directives, such planning cannot guarantee that Guardianship Litigation or Contested Guardianship Proceedings will not occur. As noted above, a Court may be asked to find that agents appointed in advanced directive documents are not performing their duties or that the directives were signed at a time when the creator lacked capacity. MHL Section 81.29 allows a Court to revoke or modify or amend a power of attorney or health care proxy that was previously executed.
A recent example of the disputes that can be generated in these situations was widely reported in the media with regard to Sumner Restone. Mr. Redstone is 92 years old and the executive chairman of media giants CBS and Viacom. As reported by Austin Siegemund-Broka on November 25, 2015 in the hollywoodreporter.com, the ex-companion of Mr. Redstone, Manuela Herzer, had filed a Court proceeding seeking to be named the person who would have the authority to care for him. As detailed in the post, Ms. Herzer had been named as Mr. Redstone’s health care agent but was then removed in a subsequently signed directive. Ms. Herzer claims in the Court proceeding that Mr. Redstone did not have the mental capacity to make the change of agents.
Guardianship Litigation regarding the effectiveness of advanced directives is not uncommon. I have represented many individuals in Court proceedings concerning contested Guardianships and the validity of advanced directives such as a power of attorney. If you have a question regarding a Guardianship or planning issue, call me now for a free discussion.
New York Guardianship Attorney Jules Martin Haas, Esq. has been representing clients in New York Guardianship Proceedings throughout the past 30 years in New York, including Queens Guardianship and Nassau Guardianship. If you or someone you know is involved with or has questions about a New York Guardianship, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.
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