By elder law lawyer Rick Law, founder and managing partner at the Estate Planning Center at Law Elder Law in West Suburban Aurora, IL
At Law Elder Law, we are occasionally contacted by individuals attempting to plan for loved ones that currently reside out of state. It is important to recognize that guardianship, like Medicaid laws, vary from state to state.
In Florida, “guardian” means a person who has been appointed by the court to act on behalf of a ward’s person or property, or both.
“Limited guardian” means a guardian who has been appointed by the court to exercise the legal rights and powers specifically designated by court order entered after the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for one’s person or property, or after the person has voluntarily petitioned for appointment of a limited guardian.
“Plenary guardian” means a person who has been appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for one’s person or property.
Emergency temporary guardian: A court, prior to appointment of a guardian but after a petition for determination of incapacity has been filed, may appoint an emergency temporary guardian for the person or property, or both, of an alleged incapacitated person. The court must specifically find the appearance of imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken. The powers and duties of the emergency temporary guardian must be specifically enumerated by court order. The court will appoint counsel to represent the alleged incapacitated person during any such summary proceedings, and such appointed counsel may request that the proceeding be recorded and transcribed. The court may appoint an emergency temporary guardian on its own motion if no petition for appointment of guardian has been filed at the time of entry of an order determining incapacity.
In New York the court may appoint a guardian for a person if the court determines it is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person. Second, the ward must either agree to the appointment or be incapacitated (as defined in section 81.02(b) of New York’s Mental Hygiene Law).
In deciding whether the appointment is necessary, the court must consider the report of the court evaluator and the sufficiency and reliability of available resources to provide for personal needs or property management without the appointment of a guardian.
A court-appointed guardian will be granted only those powers that are necessary to provide for personal needs and/or property management of the incapacitated person in such a manner as appropriate to the individual and that will constitute the least restrictive form of intervention.
New York defines “guardian” as a person who is 18 years old or older, a corporation, or a public agency, including a local department of social services, appointed in accordance with the statutory terms by the supreme court, the surrogate’s court, or the county court to act on behalf of an incapacitated person in providing for personal needs and/or for property management.
Too many families needlessly lose everything they have. Don’t let that be you. If you need help paying the overwhelming cost of long term care, give our office a call at 800-310-3100. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now, because when you’re out of money, you’re out of options!
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick was named the #1 Illinois elder law estate planning attorney by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care. Call 800-310-3100 for your free consultation now!