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Probate Law and Elder Care

Our parents and grandparents shape our lives from as far back as we can remember. As family members age, it is important to honor that legacy of caring by doing all that we can to ensure that our loved ones are protected. When health issues such as Altzheimer’s disease and other degenerative disorders enter the picture, though, caring for our elders becomes more complicated. It can be difficult to decide if and when to set up a legal guardianship to preserve the best interests of an elderly relative. Here is some background information to help in this time of transition.

What is the difference between guardianship and power of attorney?

The main difference between guardianship and POA is that the guardian is appointed by a court of law, while the person with power of attorney is chosen by the elder, or “principal,” in the event that the person becomes incapacitated. There are two types of power of attorney: one for healthcare decisions and one for financial management. This person then becomes the principal’s “agent,” and is responsible for taking care of the concerns outlined in the POA agreement. Power of attorney agreements can take effect immediately or at the point of mental incapacitation depending on the wishes of the principal. Generally, it is best to have a POA in place before it is needed because guardianship disputes can be contentious and cause significant rifts within families.

When is legal guardianship required?

Broadly speaking, it is necessary for a person to cede legal guardianship to a trusted person when he or she can no longer manage the affairs of daily life. For example, an elderly relative who suffers from a disease that affects memory and cognition is unable to manage finances and is vulnerable to exploitation. Refusing appropriate medical treatment is another reason why legal guardianship might be considered. In cases such as this, it is advisable for the person’s children or other relatives to begin the process of obtaining guardianship.

How do I start the process?

First, you must go to court in order for the guardianship (or conservatorship) process to begin. The court will determine whether the person is mentally incompetent and appoint a guardian to be responsible for living arrangements, finances, medical care, etc. Unfortunately, this process takes away many of the elderly person’s rights to self-determination, but a caring guardian can minimize restrictions however possible. A court-appointed guardian will also be responsible for reporting on the status of the guardianship at regular intervals. If you are unsure of what criteria the state uses to judge incapacitation, consult with a local probate lawyer who is experienced with cases of elder care and knows the state’s guardianship laws.

To answer your questions about probate law, legal guardianship, power of attorney, and estate planning, call the law offices of Richard Cary Spivack for a consultation today. With expert knowledge of local probate law, a Queens probate lawyer can help you to protect the interests of your loved ones.

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