Each New York incapacitated person (IP) is entitled to an Article 81 guardian whom the court finds to be sufficiently capable of performing the duties and exercising the powers of a guardian necessary to protect the IP.

Each person appointed by the New York court to be a Mental Hygiene Law Article 81 guardian must complete a training program which covers:

1. the legal duties and responsibilities of the guardian;
2. the rights of the IP;
3. the available resources to aid the IP;
4. an orientation to medical terminology, particularly that related to the diagnostic and assessment procedures used to characterize the extent and reversibility of any impairment;
5. the preparation of annual reports, including financial accounting for the property and financial resources of the incapacitated person.

The New York court may, in its discretion, waive some or all of these education requirements or impose additional requirements.

In doing so, the court shall consider the experience and education of the New York guardian with respect to the training requirements , the duties and powers assigned to the guardian, and the needs of the IP.

The New York Family Health Care Decisions Act (FHCDA) went into effect on June 1, 2010.

The law allows   family members and friends to make health care decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, on behalf of patients who lose their ability to make such decisions.

It applies to patients who have not prepared advance directives, such as health care proxies and living wills. There is a protocol for health care practitioners to determine whether a patient in a hospital or nursing home has decision-making capacity.

For patients without such capacity, the selection of a surrogate is required from a list of individuals ranked in order of priority, including family members, domestic partners and close friends.

Even with the passage of the FHCDA, you should still prepare a health care proxy and living will. These can be tailored to give your agent as much or as little authority as you desire.

Your wishes regarding the administration of artificial nutrition and hydration must be specified in writing in order for your agent to discontinue such measures

When an “Incapacitated Person” (IP) is no longer able to make certain decisions concerning the management of his or her property and/or health or well-being, the court can appoint a guardian to make these decisions for him or her.

New York’s Guardianship Statute, Article 81 of the Mental Hygiene Law, ensures that the guardian’s authority is narrowly tailored to do only what the IP can no longer do for himself or herself.

The need for a New York guardian could arise when an IP becomes physically or mentally incapacitated for any number of reasons, including accident, disease, or merely the natural process of aging.

This incapacity must pose a risk of harm to the individual who must be incapable of understanding the nature and consequences of his or her incapacity and its potential risk.

The following people may commence a proceeding for the appointment of a New York guardian: the person himself or herself, children, siblings, parents, the chief executive of a hospital or other health facility where the person resides, someone with whom the person resides and others who can demonstrate direct concern for the welfare of the person.

The court appoints an impartial court evaluator to interview the alleged IP and make recommendations to the court. The court hears from all of the interested parties involved, especially the alleged IP if able to communicate his or her wishes.

The court-appointed evaluator, the alleged IP’s attorney if represented by legal counsel and the person seeking the guardianship are all present and heard.

The New York guardian’s chief responsibility is to make decisions for the IP. These decisions must be well reasoned, protecting the IP and within the scope of the authority the court has granted the guardian, including: managing the monthly income and expenses of the IP, selling real or personal property, hiring home health aides and applying for government benefits.

The guardian is also responsible for visiting the IP at least four (4) times per year, providing the court with a report 90 days after being appointed that explains the steps the guardian has taken to meet the needs of the IP and providing the court with a yearly report on the status of the IP and whether the guardianship should continue. The guardian does not have the power to make health care decisions on behalf of the IP unless specifically authorized by the court.

A New York developer planned to build a 72- unit assisted living facility for the aged with staff offering residents assistance with meals and daily activities, but not skilled nursing care.  The proposed site is zoned partly for commercial use and partly for residential use.

After the Board of Zoning Appeals rejected the builder’s bid for a special use permit, it filed a federal suit for violating the Americans With Disabilities Act (ADA), the Rehabilitation Act and the Fair Housing Act.

The builder alleged discriminatory conduct including the failure to reasonably accommodate the needs of the disabled prospective residents.  It sought a preliminary injunction ordering the town to allow construction.

The U.S. Court of Appeals for the Second Circuit ruled that because the developers failed to show that people without disabilities could get what they were seeking—permits for residences in that same commercial zone—no injunction was warranted.

“If a building permit would not be granted even for comparable ‘traditional’ residences (that is, residences where persons without disabilities can live) in the relevant area, a municipality is not required to make accommodations that would facilitate a building permit for housing designed for the disabled.”

A Will names an executor who has the power to petition the Surrogate’s Court to probate it.  An executor is the “personal representative” and fiduciary of the decedent and as such must administer the estate.  The executor must ensure that the Will is carried out.  In general, the executor must:

1. Handle funeral arrangements and pay for the funeral;
2. Pay any outstanding bills of the estate;
3. Collect and preserve assets;
4. Pay debts, taxes and administration expenses of the estate; and
5. Distribute estate assets according to the terms of the will.

For further information, read the free  New York Executor’s Legal Survival Guide or call Buffalo and WNY Estate Planning Attorney Bob Friedman at  716 631 9999 or toll-free at 800 729 4571.

When you write a Will as testator in Buffalo, NY, it is especially important to choose competent and trustworthy executors and alternate executors. Otherwise, even careful estate planning may be rendered useless. The executor can be any person or institution that you choose. However, an executor should be:

• Experienced and competent in business matters;
• Familiar with your business, finances and property;
• Able and willing to act as your executor;
• Able to spend the time necessary to perform his or her duties;
• Able to work with the estate’s attorney and accountant; and
• Able to provide for the continuation of your business.

The 2010 New York Medicaid regional rates used to determine a transfer of assets penalty period are:

These rates are based on average nursing home costs in each of the seven regions in New York State. A period of ineligibility (“penalty period”) is imposed for any transfers of assets for less than fair market value (gifts) since February 8, 2006.

A period of ineligibility for Medicaid institutional services will result from these transfers. Medicaid will calculate the period of ineligibility by the following statutory formula: the dollar value of the transfer divided by the average monthly cost for one month of nursing home care equals the number of months of ineligibility for Medicaid nursing home institutional services.

For further information, see the free New York Medicaid Guide at http://www.wny-lawyers.com/medicaid.pdf

If you have questions about Estate Planning Issues and other legal matters that will impact your family as you grow older, contact Buffalo New York Estate Attorney Bob Friedman at (716) 542-5444.

Probate is the process of proving that the Will of a deceased person (testator) is in fact his or her Will and reflects his or her wishes. The purpose of probate is to prove the validity of the Will, have the executor appointed and administer the estate.

A Will may not be probated unless the Surrogate’s Court is satisfied as to its genuineness and the validity of its execution (signing). A Will must be probated to be valid. It is not operative until it is admitted to probate by the Surrogate’s Court.

Admission of the Will to probate requires establishing, upon due notice to all required persons, that:

1. It is the Will of the decedent;
2. That it has been signed and witnessed and otherwise executed as required by law;
3. That at the time of its execution the decedent was of sound mind;
4. That it, indeed, was the last will and testament of the decedent.

The execution of a subsequent Will revokes an earlier Will. When the court is satisfied that the above conditions have been established, the Will is admitted to probate and is effective for all purposes, including the transfer of the title to real property.

Until such admission to probate, the Will has no force and effect and the named executor has no authority.

In an New York Guardianship Article 81 proceeding, the New York Supreme Court, Cortland County, appointed the court evaluator as a “monitor” to oversee the financial transactions of the Alleged Incapacitated Person (AIP), instead of appointing a guardian.

The AIP suffered from a bout of hypomania causing him to engage in irrational and excessive spending.  At the hearing, he testified as to his recovery from the illness. However, he acknowledged that there was a thirty per cent chance he would relapse.

The court found that he was not presently incapacitated and agreed with him that a guardian was not needed. However, because he was in the midst of a divorce action and a relapse could have an adverse effect on the equitable distribution of property, the court recommended a protective arrangement.

The court evaluator, an attorney, was appointed to serve as monitor to: 1) receive and review copies of all financial statements and records and to speak with any employees of financial institutions where his assets were being held; 2) receive and review all his medical records and to speak with his physicians, psychologists and medical providers; and 3) review and approve any financial transaction in excess of $50,000.  The protective arrangement was set for a period of one year. The monitor was authorized to apply for extensions to the court.