These resources can include nursing and home health services, adult protective services, representative payee services, as well as the utilization of advance directives such as powers of attorney and health care proxies. It is important to remember that advance directives must be signed while a person has the legal capacity to do so. Particularly, in cases of limitations due to aging, it is possible for a person to execute a power of attorney or health care proxy even after she has been experiencing some impact from the onset of dementia or other debilitating condition, so long as the document is signed during a period of awareness. If the condition proceeds too far, however, it may be impossible for an attorney to ethically prepare an advance directive because the person may no longer have the legal capacity to understand the nature of the document. Also, if the guardianship process has already begun, any advance directive that is executed may be set aside by the court.
An Article 81 guardianship proceeding must be filed in the Surrogate’s Court. At the beginning of the guardianship process, the court will appoint an evaluator who has numerous responsibilities that include meeting with the alleged incapacitated person, or AIP, and making recommendations and submitting written reports to the court. The evaluator may also take independent steps to preserve the AIP’s property from being misappropriated, destroyed or lost.
However, any act of this type must be reported to the court. The AIP may consent to a guardianship, but if she will not or cannot consent, the court will hold a hearing to decide whether a guardianship is necessary under the circumstances. The AIP has numerous rights, including the right to an attorney of her own choosing, and if she cannot afford an attorney, she has the right to have the court appoint an attorney for her (at this point the evaluator will be discharged).