CLE: ‘Representing Clients with Diminished Capacity: Ethical Rules and Best Practices’ on October 5, 2020
Daniel J. Reiter, Esq. will be co-teaching a Continuing Legal Education course on Representing Clients…
Are you a guardian concerned about keeping your ward in a nursing home? You aren’t overreacting. Statistics and reports about the spread on Covid-19 through nursing homes in New York City, and nationwide, are troubling.
Last week, the Cuomo administration announced that 2,690 nursing home residents across New York state have died.
Of course, the initial decision to move your ward from a nursing home is one that should be made in consultation with the appropriate professionals, such as a geriatric care manager. However, the legality of moving your ward from a nursing home may require the assistance of a lawyer, or an application to the court on an “emergency” basis.
If a court-appointed article 81 guardian decides to move their ward, for fear of Covid-19, the first step is to look to the Order and Judgment appointing them guardian. A lawyer should almost always be consulted under these circumstances.
Most Orders and Judgments contain a provision authorizing the guardian to move their ward from a nursing home, subject to court approval.
These “place of abode” provisions usually read something like:
The Guardian shall have the following powers with regard to the personal needs of the incapacitated person … Choose the place of abode, upon further order of the Court…
If the Order and Judgment allows the guardian to choose their ward’s place of abode, no court approval is needed.
If prior court approval is required, you or your attorney will need to make a motion on an emergency basis because courts are generally only entertaining emergency applications (at least at the time of this writing). Call us biased, but we almost always recommend that guardians retain counsel to assist with these matters.
To make the application, you or your attorney will need to contact the court to determine their specific procedures. During normal times, a motion made on notice or an order to show cause are the usual methods. On rare occasions, the court may allow the guardian or counsel to simply email a proposed order to the judge’s law secretary for the judge’s consideration.
Transferring your ward out of a nursing home is a serious matter. If you find yourself in this difficult position, we’re here to help. Our firm can be reached at 646-820-4011 and firstname.lastname@example.org.
This article is intended for educational and marketing purposes. It should not be construed as legal advice. Every case presents its own unique facts and circumstances, and every client has their own individual needs.
This article was last updated on Sunday April 19, 2020 at 11:18am EST. Rules, laws, regulations, and court procedures continue to change rapidly.