The Law of Incapacitated Parties and Probate

When estate planning clients require a legal guardian to perform power of attorney, the process can be complicated. This is especially true when rules of guardianship are involved in distribution of revocable trust assets for purposes of medical care or other life-sustaining care need of the trustee. In some states, like New York, state law allows for the legal guardians of incapacitated parties to withdraw life-sustaining therapies if the former deems the patient’s wishes are met with the decision. While informed consent laws provide for guardian power of attorney in meeting those medical treatment requirements, the payment for those professional services may be beyond a patient’s means without disbursement of convertible trust assets.


Guardianship and Estate Planning

The following is a checklist for representation of a trustee who is an incapacitated party in the estate planning process:    

  • Written Will – articulates the guardianship/representative relationship of the decedent, designating beneficiaries of the estate at time of death.
  • Trust Plan – financial plan protecting the trustee, the trust sets guidelines to management of estate assets for purposes of distribution, and to prevent probate court proceedings.
  • “Durable Power-of-Attorney” — a document naming someone to represent the trustee an “incapacitated party” in financial decisions.
  • Healthcare Proxy – a document naming a guardian responsible for healthcare decisions for an incapacitated party.
  • Living Will – a document stipulating a trustee’s wishes concerning life-sustaining medical treatment, and payment for those measures should they be taken to prolong life should he/she be permanently incapacitated or unconscious.

Incapacitated Trustee Rights

A patient’s adequate quality of life is the basis to duty to a reasonable standard of care by a guardian under New York law. The same tort rule applies to representation of a trustee who is an incapacitated party in planning, execution, and probate administration of an estate.  Estate planning professionals recommend that a trustee’s guardian and other representative(s) involved in the execution of the will and the estate planning process. On death, probate administration for a trustee with “incapacitated party” status continues according to standard legal procedure. Contact a licensed attorney at law knowledgeable about New York disability rules within estate planning and probate law for advisory about a making decisions on behalf of a trustee who has been deemed an incapacitated party.


Contact an Estate Law Attorney

Estate planning on behalf a trustee who is also an “incapacitated party” is a complex legal matter. In New York state, an executor of an estate must be at least 18 years of age, and “of sound mind” not deemed mentally incapacitated by a court (N.Y. Surr. Ct. Proc. Act § § 103, 707.) When a trustee requires power of attorney to manage valuable trust assets to sustain an adequate quality of life, an attorney specializing in estate law can help. Ettinger Law Firm is a licensed attorney practice in New York providing clients with estate planning and probate litigation services. Contact Ettinger Law Firm for consultation about an estate law matter.

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