When there's no power of attorney -- resources for people who want to petition for guardianship

July 15, 2015


Dear Friends,

As you know, we at the VOLS Elderly Project help seniors obtain powers of attorney mainly so that they may empower trusted family and friends to keep them living in the community and avoid institutionalization should they become incapacitated.  If there is no power of attorney in place at the time of an incapacitating event, the family may be faced with the upsetting, difficult, and expensive prospect of a guardianship proceeding in NY State Supreme Court.  I received a phone call earlier this week that serves as an unfortunate reminder of how challenging this scenario can be for the loved ones of an incapacitated person.

A brain hemorrhage – and no power of attorney

A woman phoned to say that her 68-year-old sister had recently suffered a sudden brain hemorrhage that left her incapacitated and in need of rehabilitation in a skilled nursing facility.  The incapacitated sister had executed no power of attorney, so her sister had no access to her bank account in order to pay bills like her rent.  She needs to pay her rent because the incapacitated sister has been categorized as a short-term rehab patient who is expected, maybe in a few months, to return to her apartment with home-care.  But if the rent isn’t paid, her landlord will eventually sue her in Housing Court to try to reclaim the apartment. 

Legal fees in the thousands for a guardianship case

The caller told me that she had spoken to several private attorneys, all of whom had told her that a guardianship petition was necessary and quoted minimum fees of between $6,000 and $10,000.  All of the lawyers required payment up front.  When the caller told these lawyers that she could not pay this much money, they advised her to wait for the skilled nursing home to bring a guardianship proceeding.  It's true that sometimes a facility will start such a case, but these lawyers' advice ignored the risk that the incapacitated sister would lose her apartment before the facility got around to starting a guardianship case – if it ever started one at all.

Free legal services for guardianship petitioners – few and far between

What other options, this lady asked me, did she have?

Unfortunately there is precious little free legal assistance available in NYC to people of modest means who want to become guardian of a loved one.  The only office that specializes in this work is Cardozo Law School’s Guardianship Clinic, which takes on only a limited number of cases, and only during the academic year.  This clinic can be reached at (212) 790-0850.  My old office, The Legal Aid Society’s Brooklyn Office for the Aging, has (to a very small extent) continued the guardianship practice that I started there – and only for Brooklyn seniors.  That office can be reached at (718) 645-3111.

There are two other offices I know of that will provide limited assistance to someone who wants to start a guardianship case.  Those offices are the New York Legal Assistance Group (NYLAG), at (212) 613-5000, and Main Street Legal Services, run by CUNY Law School.  Main Street Legal Services used to provide, like the Cardozo clinic, representation in court, but I have just been told that the office now provides only assistance to people who wish to prepare their own court papers and start a case on their own without a lawyer.  Those interested in this limited service should call Guadalupe Vidal at (718) 340-4459.  Finally, I should note that the Guardian Assistance Network (GAN) offers free assistance to those who have been appointment guardian.  You can reach the GAN at (347) 296-1948.

My sister will gladly pay you Tuesday for a guardianship case today . . .

There is one more option – but it works only where the alleged incapacitated person has at least a few thousand dollars in the bank. 

The law says that the judge in a guardianship case can order that the fees of the lawyer who represented the petitioner (the person who started the case) be paid from the funds of the incapacitated person if the judge decides that the alleged incapacitated person does indeed need a guardian.  Unlike the lawyers to whom the lady who called me spoke, some elder-law attorneys will take on a guardianship case with no payment up front and will wait – I should say hope – to be paid from the assets of the person allegedly in need of a guardian.  I say “hope” because the court case may, for various reasons, end before the judge makes a decision about the need for a guardian, or the judge may decide to deny the petition – and in either circumstance the alleged incapacitated person’s funds will not be used to pay the petitioner’s legal fees.  Needless to say, before agreeing to take the case, these lawyers would want some assurance that the alleged incapacitated person has enough money in the bank to pay their anticipated fees. 



So what did the lady who called me decide to do? Even though I told her of some lawyers who would take her case without payment in advance, the caller decided to try to start a guardianship case herself, without a lawyer.  She has asked Main Street Legal Services to help her prepare the papers, and I agreed to give her advice along the way at any of my monthly legal clinics – to which I hope you will continue to refer clients with questions about guardianship and other legal matters.

All the best,