Many people have heard of the horrors of Guardianship proceedings. In New York, these proceedings for those over 18 who became incapacitated as an adult fall under Article 81 of Mental Hygiene Law. Guardianship is a legal process set by the court of the county where an alleged incapacitated person resides. The purpose of Guardianship is to assist the alleged incapacitated person with his or her personal needs and/or property management by having a guardian appointed to him or her. An Article 81 Guardian should be appointed to a person who is unable to care for their own property and/or personal needs and likely to suffer harm because they cannot understand the consequences of not being able to care for their property and/or personal needs.
The most recent guardianship news headline is the case of Wendy Williams, a former broadcaster and media personality. Williams (59) became an incapacitated person and had a guardian appointed to her by the New York Supreme Court due to her cognitive decline from a dementia diagnosis. Wells Fargo Bank petitioned the Court alleging that Williams was a victim of undue influence and financial exploitation. While the full record of this case remains sealed, it is known that Williams executed an earlier Power of Attorney appointing her son as her agent, but the court believed the documents were not sufficient and decided that it was still best to have an independent guardian appointed to Williams. “One judge and three doctors say my money is still stuck at Wells Fargo and I’m going to tell you something, if it happens to me, it could happen to you,” said Wendy at one of her shows.
Wendy Williams may have avoided Guardianship by creating a full and proper estate plan before her health began to decline. A Power of Attorney is a great first step – hiring an estate planning attorney to draft and supervise the document appointing trusted individuals to act on your behalf if you are unable to act for yourself. Additionally, many guardianship proceedings can be avoided by setting up a trust and funding it with your assets. By setting up a trust, you can clearly indicate what your wishes are in terms of your finances and appoint successor trustees to act on behalf of the trust assets in the case of incapacity.
It is never too early to start planning for your future. Experienced attorneys at Futterman, Lanza & Pasculli, LLP are here to guide you and address all your estate planning needs.