Tag: guardian

Capacity and Health Care Proxies

On August 22, 2012, in Estate planning, by John A. Weber IV, ESQ.

Capacity and Health Care Proxies

Most people know that a court may void a will if it believes that its creator was cognitively impaired when the will was written or signed. Essentially, if a court believes that a person could not have understood the will that the person signed, then the court will declare the will void. The same standard applies to powers of attorney. However, the legislature has adopted a different standard for Health Care Proxies. Section 2981(1)(b) of New York’s Public Health Law provides:

For the purposes of this section, every adult shall be presumed competent to appoint a health care agent unless such person has been adjudged incompetent or otherwise adjudged not competent to appoint a health care agent, or unless a committee or guardian of the person has been appointed for the adult pursuant to article seventy-eight of the mental hygiene law or article seventeen-A of the surrogate’s court procedure act.

This means that the competency determinations for health care proxies is different than for wills and powers of attorney. For example, imagine that a person signs a health care proxy, power of attorney, and will on the same day. Because the rules for determining competency are different, it is possible that a court will decide that the person had capacity to sign the health care proxy, while lacking capacity to sign the power of attorney and will, even though the three were signed on the same day. Under this law, a health care proxy’s challenger bears the burden of proving incompetence. In the absence of evidence showing incompetency, no evidence of competency need be offered.

Of course, this does not mean that every health care proxy is valid. The presumption established by law can be overcome with the right evidence.

If you have any questions about this or other legal issues, call the Law Firm of Vaughn, Weber & Prakope, PLLC today at 516-858-2620 to schedule a free consultation.

Use Will to Appoint Guardian for Minor Children

On August 6, 2012, in Estate planning, by John A. Weber IV, ESQ.

Use Will to Appoint Guardian

Use will to appoint guardian for your minor children.

It’s hard to plan for the worst, but failing to do so may only make things harder.  When drafting a will, it is all too easy to imagine that it will only be used when our children are grown, perhaps with families of their own. But thinking this way may cause us to focus too narrowly on deciding who gets our property.  What if things don’t happen according to this timeline?  What if you die before your children are able to take care of themselves?  Who will care for them?  Who would you like to make this decision – yourself or a court?

New York’s Domestic Relations Law allows parents to use wills to appoint guardians for their minor children.  Guardians can be appointed to take physical custody of children, and to look after the finances and assets that are left to those children.  Further, parents can choose a different guardian for each of these tasks – one to look after the child, one to administer the child’s finances.  When a guardian is appointed, courts will generally respect the parent’s decision (although a court could find that the guardian is unfit).  However, if a parent doesn’t appoint a guardian, the court will make this decision itself.  If you feel uncomfortable about leaving such a decision in the hands of a court, The Law Firm of Vaughn and Weber can help you draft a will that appoints a guardian for your child.

If you have questions about this or other legal issues, call The Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620 to schedule a free consultation.

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