New York Times Article Highlights the Need to do Advance Directives

December 20, 2018

Hi everyone, 

On Friday, the New York Times released an article on Article 81 guardianships, focusing on the account of an elderly woman, Ms. Funke, who has been under an Article 81 guardianship as of last year. The article highlighted a number of issues entailed with this type of guardianship, giving examples of extreme cases of elder abuse which resulted from these guardianship appointments. While Article 81 guardianships serve an important, and often necessary, role in the lives of persons with incapacities, they often can be avoided by planning ahead for one’s own possible future incapacity.
An Article 81 guardianship is a system set in place by the state of New York, wherein a court may appoint a guardian to manage the personal and/or property management needs of an incapacitated person. It is costly, time-consuming, intrusive, and can strip a person of a number of rights. This system is meant to serve as a means of last resort, which should only be utilized if there is an immediate, unmet need of an incapacitated person that can only be achieved by granting a guardianship. In making this determination, a court will look to see if an alleged incapacitated person executed certain advance directives before such person lost capacity. If such advance directives exist, and they allow an agent chosen by the incapacitated person to handle a personal or property management need of such person, then a guardianship will be unnecessary, and would not be granted by the court.
Two such advance directives that are important during one’s lifetime include a power of attorney and a health care proxy. A power of attorney is a document which allows a person to appoint an agent to handle financial, legal, and business matters on their behalf, and does not strip a person of any rights. A health care proxy is a document which allows a person to appoint an agent to make health care decisions on their behalf, should they become unable to do so themselves. If a power of attorney and/or health care proxy are in place, they could avoid the need for an Article 81 guardianship, as the alleged incapacitated person already appointed an agent to handle affairs which they have since become unable to manage themselves.
If Ms. Funke had executed these advance directives before unfortunately losing capacity, she may have been able to avoid her guardianship altogether and been spared the enormous costs – both financial and emotional – that came along with it. Planning for one’s own possible future incapacity is so important for a number of reasons. Avoiding an Article 81 guardianship is among the most important, and may allow a person to retain their dignity, choices, and rights during an already difficult time.
Warm regards,

Alyssa Villareal
Staff Attorney, Elderly Project
Volunteers of Legal Service
40 Worth Street, Suite 820
New York, NY 10013-2904
Tel: 347-521-5709
Fax: 347-521-5741
Pronouns: She, her, hers