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The rise in nursing home control over guardianships

The purpose of a guardianship is to provide someone you trust with the legal authority to take care of your personal and property interests in the event you become incapacitated. Guardianship of the Person includes steps to be taken about non-financial matters, which include medical and end-of-life decisions. However, research shows that of 700 guardianship cases filed in Manhattan over the 10-year period from 2002 to 2012, more than 12 percent were brought by nursing homes. Other petitions came from hospitals and Adult Protective Services, but many people are unaware that such steps can be taken by petitioners other than relatives or friends of the person for whom a guardianship is being sought.

A law in force for decades

The New York statute enacted in 1993 stipulates that the facility in which the incapacitated person resides can bring a petition for guardianship before the court. However, court cases of this kind are not confined to New York State. A 2007 study funded by the Retirement Research Foundation found that statutory provisions for public guardianship existed in 44 states.

Other tools for long-term planning

Among the written, legal directives that provide doctors and other healthcare professionals with your preferences concerning medical care are the living will and the medical power of attorney. These documents convey your instructions if you become incapacitated or cannot make decisions for yourself. Having such documents in place help to reduce confusion about your wishes and relieve caregivers and family members from having to make decisions on your behalf. You may have been seriously injured and in a coma, you may suffer from dementia or you may be near the end of your life. In circumstances like these, the care you deserve will be easier to provide if the decisions you have set forth in pertinent documents are there to guide your healthcare team. While you are in the process of preparing your advance directives, ensure that family members know where the documents are kept so that they can be retrieved quickly in the event of an emergency.

Plans put in place can be overturned

You may have made a will and put a power of attorney in place plus a healthcare directive, but there is a possibility that if you should eventually reside in a nursing home, the facility could establish a guardianship that gives them control of your finances. You and your family want to feel confident that such a situation will never occur. An attorney experienced in matters pertaining to elder law can answer the questions you have and support you in your wish to live out your life with your long-term plans solidly in place.

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