A Guide To Temporary Guardianship

Under New York law, temporary guardianship means what it sounds like: a Court appoints a qualified individual as a temporary guardian for a person who is allegedly incapacitated. However, how to go about getting a temporary guardian appointed and what a temporary guardian can and cannot do is a bit more intricate.

TEMPORARY GUARDIANSHIP: PERSONAL NEEDS AND PROPERTY MANAGEMENT

First, a temporary guardian can have authority involving personal needs, property management, or both.

Typical statutory personal need powers commonly include determining who shall provide personal care or assistance, making decisions regarding social environments, authorizing access to confidential records, etc.

A temporary guardian’s powers over property management are generally more extensive and usually include marshaling income and assets, paying bills, entering into contracts, applying for government and private benefits, etc.

Regardless of whether a temporary guardian is granted powers over personal needs or property management (or both), it’s important to note that a Court will only grant those powers that constitute the least restrictive environment.

TEMPORARY GUARDIANSHIP LEGAL STANDARD

Section 81.23 of the Mental Hygiene Law explains what a petitioner needs to allege so the Court has the requisite authority to appoint a temporary guardian:

“[T]he court may, upon showing of danger in the reasonably foreseeable future to the health and well-being of the alleged incapacitated person, or danger of waste, misappropriation, or loss of the property of the alleged incapacitated person[.]”

So what constitutes a danger to the health of the alleged incapacitated person or waste, misappropriation, or loss of property? Here are some of the most common circumstances that can warrant a temporary guardianship.

Eviction and Risk of Homelessness

In the face of drug and alcohol abuse, dementia, or other disabilities that affect one’s cognition, forgetting to pay bills is often one of the first things to fail. While many utilities and other providers will continue to provide services despite past due balances, landlords are usually not so forgiving. This is even more important now considering New York is preparing to lift the stay on landlord-tenant eviction proceedings.

The same is true for persons suffering from hoarding conditions. The author has personally witnessed many, many living conditions around New York that result in allegedly incapacitated persons packing every inch of their living spaces with mounds of newspapers and other items most people would consider trash. Because of the hazards such hoarding conditions create, i.e., fire safety, bedbugs, etc., landlords are not wrong to want to evict tenants when their hoarding results in severely unsafe circumstances.

Accordingly, if you’re concerned that someone lacks the ability to appreciate that paying the rent means not getting evicted, or if they’ve reached a point where they are living, eating, and sleeping atop several feet of rubbish, those are usually sufficient grounds for a Court to appoint a temporary guardian.

Scams and Financial Abuse

Another telltale sign that a person might need the appointment of a temporary guardian is susceptibility to online and phone scams. 

Having acted as both temporary and permanent guardian for incapacitated persons, the author has fielded many questions and concerns from wards regarding phone calls involving the suspension of social security numbers, ridiculous financial demands from foreign embassies, etc.

While such scam tactics may seem obvious to the rest of us, people who are unable to manage their activities of daily living likely find them a lot more genuine and, as a result, are much more likely to unwittingly provide pedigree and financial information to scammers.

Such circumstances represent serious allegations which Courts will give considerable weight and are usually grounds for the appointment of a temporary guardian.

Repeated Hospitalizations

Of course, there are instances when people find themselves in the hospital again and again yet due to no fault of their own. That’s called bad luck.

However, repeated hospitalizations can also result from one’s failure to remain compliant with medications prescribed for conditions like schizoaffective disorder and, as a result, they end up experiencing mental states in which they are unable to distinguish between reality and fantasy. And, if their behavior becomes erratic enough, they become prone to short but involuntary hospitalizations.

For some, medication by itself is insufficient, but when the issue is compliance, there is often a need for a temporary guardian, and that brings us to what temporary guardians can and cannot do. 

WHAT A TEMPORARY GUARDIAN CAN DO

Preventing Eviction

While a temporary guardian lacks the authority to stop an eviction proceeding, the Court who appoints a temporary guardian does have that authority. Under New York law, if the petitioner asserts allegations that an allegedly incapacitated person is facing eviction, the Court will likely restrain the eviction until such time that the guardianship proceeding is complete.

The idea is that, if a tenant lacks the cognition to timely pay their rent or is unable to control their hoarding, then the Court is simply requiring that the landlord allow more time in the hopes of avoiding an eviction if a guardian is appointed who can subsequently address rental arrears and/or hoarding.

Marshal Income and Assets

This is important – extremely important. In 2017, the author was appointed temporary guardian of a person who had been missing for several years. Having been granted the authority to marshal the income of the missing person, the author started by visiting the local social security offices with the Court order.

Not long after his visit, one of the representatives from the office called to explain the missing person had recently updated their address – they had been living in a homeless shelter nearby! As of the date of this article, the person is no longer homeless, is living in a suitable apartment, and is no longer subject to a guardianship because she’s managed to remain compliant with her medication.

That said, he who controls one’s finances also controls how far one can go – a very useful power for temporary guardians.

Further, it’s also important that a temporary guardian have the power to marshal income and assets to make sure the bills get paid which, in turn mitigates financial loss, waste, misappropriation, etc.

Residencial Key Access

If there are concerns or allegations relating to hoarding or other matters involving a house or apartment, the Court may give a temporary guardian key access. While it may seem invasive, a temporary guardian would be powerless without such authority if the allegedly incapacitated person refused to answer the door and let the guardian inside!

It’s equally important for a temporary guardian to have firsthand knowledge of whether anyone other than his or her ward is living in the home. Without key access, this would not be possible. It is not an uncommon circumstance to find some people attempting to leverage their relationship with an elderly grandparent by living in their home, eating their food, and spending their retirement funds to the detriment of the allegedly incapacitated person. A temporary guardian would be unable to stop such behavior if he or she can’t access the home.

WHAT A TEMPORARY GUARDIAN CAN NOT DO

Have Someone Committed

Having someone “committed” is a phrase one hears here and there, usually in reference to an unruly or criminal family member, meaning one is going to make a phone call and the family member is going to end up wearing a straight-jacket in a padded cell.

Nothing could be further from the truth – at least in New York.

There are no laws on the books in New York that allow one person to remove the civil liberties of another person without significant legal and Court involvement. And that’s a very good thing. Imagine what life would be like if someone you inadvertently upset had the power to put you away for a few months if they picked up the phone and called 911.

See? It would be horrifying.

That said, temporary guardians do not have the authority to force an allegedly incapacitated person into a hospital or other institution against that person’s wishes. Rather, if a temporary guardian becomes concerned for the immediate safety of a ward, he or she can call 911 and the authorities who arrive will be the ones who determine whether a ride to a hospital is necessary. And, if that happens, then qualified medical professionals will make a further determination about the level of care and/or intervention that is needed.

Mandating Medication

Just like a temporary guardian cannot have a person “committed,” a temporary guardian cannot force a ward to take medication. Encouragement is one thing – demands are another.

Absent a Court order, even physicians cannot force their patients to take medications over their objections so, when it comes to medication, such authority is well beyond the scope of a temporary guardian.

Paying Professional Fees

Compared to hospitalizations and medication over objection, paying an accountant to prepare an annual tax return might seem like small potatoes and, usually, it is. However, while a Court order appointing a temporary guardian may allow the guardian to retain such professionals, Courts prefer to retain final decision making over how much of the person’s money is spent actually paying the professionals hired.

Acting as a temporary guardian is no small feat. Petitioning the Court to obtain approval to act as a temporary guardian can be equally complex. Having acted as temporary guardian many times and having represented petitioners seeking their own appointment as temporary guardians, Stephen Donaldson, Esq., is uniquely positioned to help answer your questions. Give us a ring or shoot us an email to schedule a free consultation.