29th Annual Elder Law Institute

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Lora Campbell
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1 TAX LAW AND ESTATE PLANNING SERIES Tax Law and Practice Course Handbook Series Number D th Annual Elder Law Institute Co-Chairs Jeffrey G. Abrandt Douglas J. Chu To order this book, call (800) 260-4PLI or fax us at (800) Ask our Customer Service Department for PLI Order Number , Dept. BAV5. Practising Law Institute 1177 Avenue of the Americas New York, New York 10036

2 8 Exploring Alternatives to Guardianship (PowerPoint slides) Prof. Rebekah Diller Benjamin N. Cardozo School of Law If you find this article helpful, you can learn more about the subject by going to to view the on demand program or segment for which it was written. 393

3 394 Practising Law Institute

4 Exploring Alternatives to Guardianship Rebekah Diller, Co-Director Bet Tzedek Legal Services, Benjamin N. Cardozo School of Law, New York, NY 395

5 Myths & Facts Myth: Guardianship ensures individual will be provided with a range of services and benefits. Fact: Guardianship is transfer of legal decision-making power to another individual or agency. The guardian may provide services or may not. Myth: Guardianship will control behavior of person. Fact: Guardian can remove certain decisions (e.g. access to bank accounts) from an individual but guardian is not a free-floating monitor to change behavior. 396

6 Myths & Facts (cont d) Myth: Guardianship is a magic bullet that will ensure the individual is protected. Fact: Guardian will be able to make decisions and seek legal remedies to protect the individual. Myth: A guardian s actions will always be closely monitored by the court. Fact: Monitoring, especially for clients with low incomes and assets, is uneven and varies from case to case, judge to judge and court to court. 397

7 Exploring Alternatives Before Considering Guardianship Guardianship deprives person of legal decision-making rights. May be experienced as loss of dignity and independence. Significant incursion on person s liberty. Person can lose the right to decide where they live, in some cases resulting in nursing home or other institutional placement over the individual s objection. Person can be deprived of making decisions about their medical care. 398

8 Exploring Alternatives (cont d.) Person can be deprived of access to basic information about their health care and finances. Person often loses access to financial resources. For example, instead of paying bills and managing money, person is given allowance. Many guardianship orders are plenary in nature. Many guardianship orders are indefinite and outlast the crisis that gave rise to the guardianship. As with any court case, litigants are no longer in control. Court can appoint independent guardian, make orders that the parties were not expecting. 399

9 Legal Obligation to Explore Alternatives Under Article 81 of Mental Hygiene Law, guardianship must be last resort, only when other available resources won t meet person s needs. M.H.L (a)(2). Requirement to explore alternatives in order to limit the powers granted under guardianship to least restrictive alternative. M.H.L (c). Once guardianship in place, ongoing obligation to assess whether alternatives suffice to restore rights or limit guardian s powers. M.H.L Emerging understanding of legal capacity as a human right. CRPD Article 12 state must create new alternatives before taking away decision making rights. 400

10 Ensuring that Existing Alternatives are Truly Exhausted Strategy: Change the Focus How can I obtain a guardianship? What are you trying to accomplish? 401

11 Challenges Often what needs to be accomplished involves intense legal or case management support and specialized expertise in wide variety of issues. Examples from law school clinic practice: Guardianship intake is often a solvable housing, benefits, advanced directives, health care or other problem. Someone has erroneously told prospective client that they need to become guardian of a loved one. Have to be able to issue-spot in a range of areas. 402

12 Comprehensive Checklist of Alternatives Advance directives Power of attorney Requires ability to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a power of attorney, any provision in a power of attorney, or the authority of any person to act as agent under a power of attorney. N.Y. Gen. Oblig. Law Health care proxies Statute silent as to requisite capacity; presumes every adult competent to make health care proxy unless under guardianship. N.Y. Pub. Health Law 2981(1)(b). Living wills Ulysses agreements or psychiatric advance directives Supported decision-making growing recognition under international human rights law 403

13 Comprehensive Checklist of Alternatives (cont d) Family Health Care Decisions Act Creates hierarchy of surrogates to make health care decisions for someone who lacks capacity and is in hospital or residential health care facility. N.Y. Pub. Health Law Art. 29-CC Friends, family and peer support Adult day care and multipurpose senior citizen centers Case management/geriatric care management Supported housing Assisted living Visiting nurses, home health aides, home attendants Housekeeping assistance 404

14 Comprehensive Checklist of Alternatives (cont d) Joint accounts Supplemental needs trusts (recent change in federal law) Guardian ad litem. (C.P.L.R ) Representative Payee Programs Social Security Admin. 20 C.F.R. Part 416, Subpart F Veterans Administration Federal Office of Personnel Management Railroad Retirement Board Other pensions may exercise discretion to designate pension representative under terms of particular plan 405

15 Alternatives When Financial Abuse Suspected Adult Protective Services Financial management Can place fraud alerts on accounts, notify credit card companies and banks Can tell pensions, reverse mortgage companies, annuities et al. to stop payments. Do not call registry 406

Guardian Usually Not Needed* *but agency may tell you otherwise Medicaid application Interaction with home care agency Fair hearing process and appeals Public Assistance Social

16 Guardian Usually Not Needed* *but agency may tell you otherwise Medicaid application Interaction with home care agency Fair hearing process and appeals Public Assistance Social Security Application Representative Payee Limited HIPAA disclosures. 45 C.F.R (b)(3). Certain medical decisions within facilities (Family Health Care Decisions Act) 407

17 NOTES 408

WARD S SUPPLEMENTAL INFORMATION FORM [Local Rule 66.1(C)]

IN THE COURT OF COMMON PLEAS OF FAIRFIELD COUNTY, OHIO PROBATE DIVISION TERRE L. VANDERVOORT, JUDGE GUARDIANSHIP OF CASE NO. WARD S SUPPLEMENTAL INFORMATION FORM [Local Rule 66.1(C)] This is an application